FAISAL ZAMAN KHAN, J.---Through this petition, order dated 04.07.2018 passed by respondent No.8 has been assailed by virtue of which a revision petition filed by respondents Nos. 1 to 3 has been accepted and order dated 12.10.2017 passed by the learned trial court (Civil Judge, Gojra) has been set aside.
2. Facts giving rise to the present petition are that for seeking partition of Shop No. P-384 measuring 176 Sq.ft. located at Quaid-e-Azam Road, Gojra (shop in dispute), a suit for possession through partition was filed by respondents Nos. 1 to 3 against petitioners and other respondents. An application was filed by respondents Nos. 1 to 3 for striking off the defence of the petitioners, which was disposed of by the learned trial court vide order dated 12.10.2017. Feeling aggrieved, respondents Nos. 1 to 3 filed a revision petition which was accepted through the impugned order, therefore, this petition.
3. Learned counsel for the petitioners submits that written statement was filed by the petitioners on 13.11.2015 however the said fact was ignored by respondent No 8 while passing the impugned order, therefore the same is not sustainable.
4. Replying to the above, learned counsel for respondents Nos. 1 to 3 submits that under Section 6 of the Punjab. Partition of Immovable Property Act, 2012 ("Act"), a defendant in a suit for partition of immovable property is bound to file the written statement within 30 days of his first appearance, however, in the case in hand, it was not done, therefore, written statement filed by the petitioners on 13.11.2015 has rightly been discarded by respondent No.8 while passing the impugned order.
5. Despite service, none has entered appearance on behalf of respondents Nos. 4 to 7 therefore they are proceeded against ex parte.
6. Arguments heard. Record perused.
7. The question which requires determination by this Court is as to whether, while accepting the revision petition filed by respondents Nos.1 to 3, defence of the petitioners has rightly been struck off.
8. A perusal of the available record would show that the afore-referred suit was filed by respondents Nos. 1 to 3 on 16.09.2015, in which on 02.10.2015, on behalf of the petitioners, Malik Riaz- ur-Rehman, Advocate appeared before the learned trial court and filed his power of attorney whereupon an opportunity to file written statement was granted and the case was adjourned to 22.10.2015. On the said date, another opportunity to file written statement was given to the petitioners subsequent to which on 13.11.2015, written statement was filed.
9. It is important to mention here that under section 6 of the Act, a period of 30 days is provided to a defendant for filing the written statement which starts from the date of first appearance of defendant before the Court. In subsection (2) of section 6 of the Act, penalty has been provided if the written statement is not filed within, the stipulated time and in case of such default, the Court "shall" strike off the defence of the said defendant as a consequence to which he shall also not be allowed to lead his evidence. for reference, the said provision of the Act is reproduced as under:-
6. Written statement.--- (1) Subject to section 5, a defendant in a suit for partition of immovable property shall file the written statement within thirty days of his first appearance in the Court and shall attach with the written statement copies of all the relevant documents in his reach or possession.
(2) If a defendant fails to file the written statement within the period mentioned in subsection (1), the Court shall strike off his defence and in that event he shall not be entitled to lead any evidence."
(emphasis supplied)
10. Placing the afore-noted provision of law in juxtaposition with the facts of the present case, it is clear and obvious that the petitioners appeared before the learned trial court on 02.10.2015, however, they filed their written statement on 13.11.2015 which was admittedly beyond the period of 30 days as contemplated in Section 6 of the Act.
11. Great emphasis has been laid by learned counsel for the petitioners on the fact that since time was granted by the learned trial court for filing the written statement and within the given time, written statement has been filed, thus the petitioners cannot be penalized due to act of the court.
12. The afore-noted explanation given by learned counsel for the petitioners is not acceptable for the reason that mandate of section 6 ibid is very clear and unequivocal as a categoric duty has been cast upon the defendant with regard to filing the written statement within the stipulated time and the court is not invested with the power to extent the said B period. Moreover, since the consequence of non-fulfilling of the said provision is also given in the section thus the mandate of introducing such a penal provision will be frustrated if the above argument is accepted.
13. It shall not be out of place to mention here that previously, suits for partition were filed under the Partition Act, 1893, however, since the procedure prescribed in the said legislation was very lengthy and litigants had to suffer due to inordinate delay, thus the legislature while promulgating the Act repealed the previous legislation in order to ensure expeditious disposal of cases qua partition and much shorter and easier procedure was provided in the Act, of which section 6 is a part.
14. As discussed above, in order to curtail the litigation and to decide the cases within short span of time under section 6 of the Act, a period of 30 days has been provided to defendant(s) in a suit for partition for filing written statement and the consequence of non-compliance of the said provision is also provided in the said section by highlighting that if the needful is not done within the stipulated time, defence of the defendant shall be struck off and he will not be allowed to lead his evidence. It shall be important to mention here that the use of expression "shall" in the said section gives a clear indication that the afore-referred provision is mandatory in nature and has to be adhered to by the courts in letter and spirit and no exception can be created. The said provision is in pari materia with the provisions provided in Order XXXVII, C.P.C. Financial Institutions (Recovery of Finances) Ordinance, 2001 and Punjab Rented Premises Act, 2009 qua filing of written statement/ application for leave to appear and defend, application for leave to defend/application for leave to contest which are an exception to Order VIII, Rule 10, C.P.C. wherein it has been made optional for the learned trial court to pass a decree in case written statement is not filed within the stipulated time as the word "may" has been mentioned in the said provision.
15. The Hon'ble Supreme Court of Pakistan in judgment reported as Province of Punjab through Conservator of Forest, Faisalabad and others (2021 SCMR 328) has highlighted the principles and test to determine whether a provision in a statute is directory or mandatory in nature. The operative part of the said judgment is reproduced as under:-- In order to determine whether the aforesaid proviso is directory or mandatory, the duty of the court is to try to unravel the real intention of the legislature. The ultimate test is the intent of the legislature and not the language in which the intent is clothed. The object and purpose of enacting the provision provide a strong and clear indicator for ascertaining such intent of the legislature. The intention of the legislature must govern and this is to be ascertained not only from the phraseology of the provision but also by considering its nature, its object, and the consequences which would follow from construing it one way or the other. This exercise entails careful examination of the scheme of the. Act in order to discover the real purpose and object of the Act. A provision in a statute is mandatory if the omission to follow it renders the proceedings to which it relates illegal and void, while a provision is directory if its observance is not necessary to the validity of the proceeding. One of the important tests that must always be employed in order to determine whether a provision is mandatory or directory in character is to consider whether the non-compliance of a particular provision causes inconvenience or injustice and, if it does, the court would say that that provision must be complied with and that it is obligatory in its character. There are three fundamental tests, which are often applied with remarkable success in the determination of this question. They are based on considerations of the scope and object, sometimes called the scheme and purpose, of the enactment in question, on considerations of justice and balance of convenience and on a consideration of the nature of the particular provision, namely, whether it. affects the performance of a public duty or relates to a right, privilege or power -- in the former case the enactment is generally directory, in the latter mandatory."
16. Likewise, in another judgment of the Hon'ble Supreme Court of Pakistan reported as Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Limited (MBCL) and another (2021 SCMR 305), distinction between mandatory and directory provisions has been highlighted. The operative part of the judgment is as follows:- "The test to determine whether a "revision is directory or mandatory is by ascertaining the legislative intent behind the same. The general rule expounded by this Court is that the usage of the word "shall" generally carries the connotation that a provision is mandatory in nature.
However, other factors such as the object and purpose of the statute and inclusion of penal consequences in cases of non-compliance also serve as an instructive guide in deducing the nature of the provision."
17. A bare perusal of the afore-noted interpretation of a mandatory and directory provision in conjunction with Section 6 of the Act, would clearly show that the said provision of law is a "mandatory provision" (and not a directory provision) which is to be adhered to in its letter and spirit otherwise it will amount to defeating the intention of the legislature and frustrating the said provision.
18. In view of the above, since the learned counsel for the petitioners has not been able to point out any jurisdictional defect or procedural impropriety in the impugned order, hence no interference can be made by this Court, as a sequel to which this petition fails and the same is dismissed.