' This regular first appeal calls in question the judgment and decree of a learned Civil Judge 1st Class at Sargodha dated 9-7-1981 whereby on the failure of the appellant to file the written statement he decreed the ,suit for the specific performance of an agreement to sell without recording of evidence under Order VIII, rule 10, C.P.C.
2. The brief facts leading to this appeal are that the plaintiff filed a suit for the specific performance of an agreement to sell in respect of a bungalow in Sargodha. The suit on institution came up before the learned Civil Judge on 5-3-1981 on which date he asked the office for scrutiny. The reader then reported that the suit was in order. The suit came up for hearing on 7-3-1981 when the learned Civil Judge ordered its formal registration and directed issuance of summons for 6-4-1981.
The proceedings of 6-4-1981 show that the counsel for the plaintiff appeared but there was no registered envelope supplied as directed by the Court on the previous date. The process-server's report was not found to be in order. It was directed that the summons be repeated and fresh process-fee be deposited and registered envelope be supplied within three days for the next date of hearing i.e, 6-5-1981. On this adjourned date of hearing, the defendant was ordered ex parte and the case was adjourned to 19-5-1981 for proper orders, The record shows that on the last mentioned date the counsel for the parties appeared and the ex parte order was set aside on payment of Rs, 30 as costs. The learned Civil Judge then ordered that the written statement be filed on 10-6-1981. The order sheet further shows that on 10-6-1981 the parties' counsel were present and the Court was informed that the written statement was not ready. The costs had been paid. No explanation was being given for not filing the written statement. The defendant was not present.
Request for adjournment was being made. The Court ordered that last opportunity was being given against payment of Rs,70 as costs and the written statement be now filed on 29-6-1981.
However, on the said date, the Presiding Officer was on leave and the case appears to have been put up before a duty Civil Judge who recorded the fact that the written statement was not ready and he adjourned the case for filing of the written statement to 9-7-1981 after recording that the costs awarded had not been paid. The case then came up for hearing before the learned Civil Judge who was trying the suit on 9-7-1981. On a request being made by the learned counsel for the defendant for further adjournment, the learned Civil Judge observed that there was no justification for the same as per the record. After recapitulating the history of the proceedings as has already been noticed above, he observed that he had perused the plaint, the copy of the agreement to sell, receipt for payment of advance money etc. On account of the failure of the defendant to file the written statement, the agreement to sell and the two receipts had to be held to be correct. The court-fee was also correctly paid. Therefore, on account of non-filing of the written statement, the suit was decreed with costs under Order VIII, rule 10, C.P.C. The plaintiff was ordered to pay to the defendant the balance consideration amount of 2,25,000 by 15-9-1981 or to deposit the same in Court. The defendant was directed to execute the sale-deed and in case of his refusal to do so the reader of the Court would do the needful before the Sub-Registrar, Sargodha. A sum of Rs,15,000 as per decree was awarded as costs.
3. Neither side has raised this point but we may observe in the passing that an order under Order VIII, rule 10 pronouncing judgment is appealable under Order XLIII, rule 1(b), C.P.C. The appellant presumably has filed the present R.F.A. Because the trial Court ordered decreeing of the suit and had also factually drawn up the decree. It matters little whether we deal with it as F.A.O. Or R.F.A.
4. The learned counsel for the appellant argued before us that the course adopted by the learned Civil Judge in pronouncing the judgment against the defendant on his failure to file the written statement was not sanctioned by law and was based on no evidence. In support of his submission, the learned counsel for the appellant relied on the judgment of the Supreme Court in re: Shamroz Khan and another v. Muhammad Amin and others PLD 1978 SC 89; a Division Bench judgment of this Court reported as Nisar Ahmad and another v. Habib Bank Ltd. Lahore, 1980 CLC 981 and a Single Bench judgment, in re: Mst. Bilqees Begum v. Syed Ali Turab and another 1980 CLC 930.
5. The learned counsel appearing on behalf of the respondent, however, placed strong reliance on the contrary view of a Division Bench of this Court in the case reported as Sardar Sakhawat-ud-Din and 5 others v. Muhammad Iqbal and 2 others PLD 1983 Lah.
448.
6. After hearing the learned counsel for the parties and carefully examining the precedent case law cited at the bar, we do find that seemingly there is a divergence of judicial opinion. It needs, however to be observed that before the learned Division Bench which decided Sardar Sakhawat- ud-Din's case, the earlier judgment of the Division Bench in the case of Nisar Ahmad was not cited.
7. Before we start resolving the legal controversy, we would like to analyses the factual position of the case in brief as has already been noted in extensor in the earlier part of the judgment. A careful perusal of the order sheet would show that the suit came up for the first time before the trial Court on 5-3-1981 and it was on 19-5-1981 that the ex parte order was set aside and written statement was required to be filed on 10-6-1981. It was on this date that time was allowed for filing the written statement after awarding costs of Rs,
70. Thereafter, when the case came up for hearing on the next date i.e, 29-6-1981, the Presiding Officer of the Court was on leave and the case was then adjourned to 9-7-1981 on which date on account of the failure of the appellant defendant to file written statement the suit was straightaway decreed under Order VIII, rule 10, C.P.C. Without recording any evidence. It thus emerges clear that as from 19-5-1981 when for the first time written statement was required to be filed up to the passing of the decree, a period of 51 days only had elapsed. The earlier period would thus not be material for the purpose of Order VIII, rule 1 of the C.P.C.
8. Now, we would like to advert to the provisions of rule 1 of Order VIII, of the C.P.C. As it stands after its amendment by Law Reforms Ordinance, 1972, whereby proviso was added which reads: "Provided that the period allowed by filing the written statement shall not ordinarily exceed ninety days."
The object of the introduction of this provision appears to be to cut short the delay in the trial of suits and in ordinary circumstances the period allowed for filing a written statement shall not exceed ninety days. However, in exceptional circumstances, the Court would still retain the power to extend time depending on the facts and circumstances of each case. We have not been able to find any extraordinary circumstances in this case warranting a post haste departure from the ordinary spirit of law in the facts and circumstances of the present case. Indeed a perusal of the impugned judgment shows that the learned trial Court was oblivious of the requirements of this legal provision.
9. In so far as the legal questions are concerned, we would like to refer to the case of Shamroz Khan ibid. In the cited precedent, the Supreme Court had the occasion to deal with and interpret the provisions of Order VIII, rules 11 and 12, Order VII, rule 21 and Order IX, rule 6 of the C.P.C. In respect of the provisions of Order IX, rule 6(1)(a), wherein it was provided that "the Court may proceed ex parte and pass decree without recording evidence", the learned Supreme Court was pleased to hold as under:- "The words" and pass decree without recording evidence" were inserted by the Law Reforms Ordinance, 1972 and we would observe here that before this amendment the consistent practice of the Courts was to record evidence before decreeing a suit under this rule. This practice of recording evidence could lead to delays and as submitted by Mr. Inayat Elahi the object of the amendment was to empower the Courts to decide a case without recording evidence. But does this mean that the question was left to the discretion of the Courts or does it mean as submitted that it was incumbent on Courts to decree a suit without recording evidence? If Mr. Inayat Elahi's submission is correct, Courts would be compelled to decree patently time-barred suits or suits which were patently dishonest or which contained absurd and exaggerated claims. Such an intention cannot lightly be attributed to the Legislature, nor would we be justified in doing so because the amended rule now reads: " the Court may proceed ex parte and pass decree without recording evidence..."
' This means that the Court may proceed ex parte and that it may pass a decree without recording evidence. The word "may" here imports discretion and means may, not shall, therefore, when a Court strikes off the defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretions vested in the Courts, this discretion must be exercised judicially. In the instant case, however, the suit was decreed against the said respondents merely because their defence was struck off, therefore, on this ground also the suit was illegally decreed against the said respondents."
A careful perusal of the enunciation of law by the Supreme Court as made in the above quoted passages would show that even where a legal provision was specifically introduced enabling a Court to proceed ex parte and pass decree without recording evidence, the matter had to be dealt with by the Court in its discretion which must be exercised judicially. In such a situation also the learned Supreme Court was C pleased to observe that it did not appear to be the intention of law that the Court would be compelled to decree patent time-barred suits or suits which were patently dishonest or which contained absurd and exaggerated claims, which in other words means that the trial Court is not absolved of a sacred duty to consciously apply its mind to the facts and circumstances of each case.
10. Now, in the appeal under disposal, the provisions invoked are those of Order VIII, rule 10, C.P.C.
Which reads as under:- "(10) Procedure when party fails to present written statement called for by Court.--Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
A perusal of the said legal provision would show that unlike Order IX, rule 6, C.P.C., there is no provision to be found enabling a Civil Court to decree the suit without recording evidence. The spirit of rule 10 clearly appears to be that it vests a discretion in the civil Court on the failure of a party required to present the written statement within the time fixed by the Court to pronounce judgment against him or make such order in relation to the suit as it thinks fit. There is nothing contained in the judgment under appeal to show that the trial Court was conscious of the two requirements of Order VIII, rule 10 either to pronounce judgment or make such order in relation to the suit as he thinks fit. There is no discussion on this point either. In the case of J.B. Ross & Co. v. C.R. Screven and others, I L R 43 Cal. 1001, a view was expressed that on the failure to file a written statement it would be undesirable if the suit was adjudicated upon without any evidence in the real sense of the word given by the plaintiff and that Court had no jurisdiction to make a decree. It was further observed in this case that the verification of the plaint was not evidence on which a suit could be decreed whether the adversary did or did not appear. The same view was shared by the Allahabad High Court in the case Ram Lakhan and another v. Mahant Govind Das, AIR 1945 All.
352. In the present case, as the impugned judgment of the learned trial Court would show, he construed the failure of the appellant to file the written statement as a circumstance obliging him to accept the photo stat copies of the agreement to sell and the receipts as correct. Thus, the learned trial Court misdirected himself in law.
11. We must observe that as a rule pleadings are not evidence by themselves as held by a Division Bench of the Karachi High Court comprising Dorab Patel and Jamal-ud-Din Ahmad, JJ in the case of Nazir Ahmad Khan and 2 others v. Muhammad Ashraf Khan and 3 others, PLD 1975 Kar.
598. We may also refer to the enunciation of the learned Supreme Court in Mst. Khair-un-Nisa v.
Muhammad Ishaque PLD 1972 SC 25, wherein it has been laid down that statements made in the written statement are not on oath. They are only verified and, therefore, they cannot be treated as evidence in the case. The same would hold good in respect of the plaint by reference to the provisions of rule 1 of Order VI which defines pleadings to mean plaint or written statement. We may also refer to the provisions of rule 2 of the said Order which provides that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Reference may also be made to the decision of the Supreme Court in the case of Malik Muhammad Ishaq v. Messrs.', Eros Theatre and others PLD 1977 SC 109, in which Mst. Khair- ul-Nisa's case has been relied upon.
12. We have already noticed on perusal of the record that with plaint the plaintiff respondent had filed photo stat copies of the alleged agreement to sell and the receipts of payment. They were not even exhibited on the record nor the plaintiff examined in support of the case set up by him in the plaint. The learned Supreme Court in the case of Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160, had ruled that the documents which are not copies of judicial record, should not be received in evidence without any proof of signatures and handwriting of persons alleged to have signed or written them, even such document's were brought on the record and exhibited without objection. In the case under disposal photo stat copies of private documents had been filed with the plaint and at no stage they were tendered in evidence or exhibited. We, therefore, fail to appreciate how the learned trial Court was competent to rely upon photo stat copies of private documents which were begging for proof. The analysis of the factual position obtaining on the record has led us to the conclusion that the judgment of the trial Court is not based on legal evidence. There are no features to be found in this case either of a defendant making admissions in written statement or confessing judgment. The provisions of Order VIII, rule 10 on careful reading also bring out that the Court is not specifically empowered to pass a decree without recording evidence.
13. On the contrary, the appellant in this case was all along requesting the trial Court for time to be able to file the written statement to defend himself. This could not reasonably be construed to amount to admission or confessing of judgment. Even on the factual plane, it was not a case of excessive delay so as to warrant a harsh treatment nor there existed circumstances to warrant hasty proceedings in ac, matter involving valuable civil rights of the parties. The impugned proceedings and judgment and decree of the trial Court on this view of the matter are not sustainable.
14. We would now like to deal with the question of divergence of views amongst the two Divisoin Benches of this Court as canvassed before us by the learned counsel from both sides. After having very carefully perused the precedent cases, we must observe that indeed the learned Division Bench in the case of Nisar Ahmad 1980 CLC 1981 after noticing the decision of the Supreme Court in the case of Shamroz Khan PLD 1978 SC 89 had in clear terms laid down that under Order VIII, rule 10 discretion to pronounce 'judgment' did not mean decreeing the suit is dexit without any proof whatsoever. This view of the learned Division Bench appears to be in consonance with the enunciation of law by the Supreme Court in the case of Shamroz Khan wherein it was observed:- "If Mr. Inayat Elahi's submission is correct, Court would be compelled to decree patently time- barred suits or suits which are patently dishonest or which contained absurd or exaggerated claims. Such an intention cannot be lightly attributed to the legislature. . . . "
15. After giving our anxious consideration to the matter in the above light, we are of the opinion that "it is inherent in the very process of dispensation of justice that the judicial conscience of the Court must be satisfied about the genuineness of the case set up by the plaintiff approaching the civil Court for relief. The record must also reflect conscious participation of the trial Court in the proceedings for discovery of truth and in order to obviate chances of unscrupulous litigants getting away with ill-merited judgments or decrees which would amount to negation of justice and defeat the very purpose of law. It follows that a judgment that is based on no evidence whatsoever on the merits of the case would be illegal. It cannot also be overlooked that there are no words to be found in Order VIII, rule 10 doing away with the absolute requirements of the Evidence Act.##TE#
16. Now, we would like to examine the precedent case of Sardar Sakhawat-ud-Din PLD 1983 Lah.
448, decided by another learned Division Bench of this Court. The views expressed by the learned Division Bench in paragraphs 11 and 12 of the judgment may be reproduced: "(11). It is a matter of common knowledge that evidence is never recorded before calling upon the defendant to file written statement. It is only after he fails to put in written statement, when so required to do, and the Court decides not to pronounce judgment forthwith but to proceed further with the case that ex parte evidence of the plaintiff can be recorded. In case the defendant files written statement to contest the suit, issues are framed and evidence of both sides is taken down.
There is thus no occasion for, recording of any evidence before the defendant submits or fails to submit written statement after he is directed by the Court to file that statement."
"(12). The plea of learned counsel for the appellants that the impugned order could not be passed without recording evidence has, therefore, no merit and is repelled."
' Speaking with utmost deference, we feel that the earlier Division Bench judgment in the case of Abdur Rashid Shah was not cited which laid down law to the contrary. The learned Judges were thus deprived of the benefit of the earlier view of this Court. The enunciation of law by the learned Supreme Court in the case of Shamroze Khan while dealing with the provisions of Order IX, rule 6, which vests discretion in a Court to proceed ex parte and decree the suit without recording evidence, did not favour decreeing of suits as a matter of course irrespective of the merits of the case of the plaintiff. It was held that the Court in its discretion must further decide whether it should decree the claim against the defendant after recording evidence or without doing so and this discretion must be exercised judicially like all other discretions vested in the Court. The broad proposition laid down by the learned Judges in paragraphs 11 and 12 of the decision in Sardar Sakhawat-ud-Din's case seems to be the result of the failure of the counsel assisting the Bench to cite the Supreme Court enunciation referred to above. Therefore, with utmost respect, we must express our inability to subscribe to this view.
17. It remains to deal with the cited precedent of (Mst.) Bilqees Begum's case decided by Hon'ble Mr. Justice M.S.H. Quraishi (as his Lordship then was) and it should suffice to refer to the following passage occurring in paragraph 9 of the judgment which reads:- "Even otherwise, Order VIII, rule 10 does not contemplate the pronouncement of judgment as the only measure for it leaves the Court a wide margin of discretion to make any other order it thinks fit.
The pronouncement of judgment in the absence of evidence to support the plaintiff's case was thus improper."
' This view is also in line with the Division Bench judgment in the case of Nisar Ahmad ibid with which we concur.
18. We are also not oblivious of the principle that Courts adjudicate on merits while construing the provisions under examination. Reference may be made to Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382.
19. For all that has been stated above, we would accept the appeal, set aside the impugned judgment and decree with costs and remand the case to the learned trial Court for fresh disposal in accordance with law .