1. NASIM HASAN SHAH, J.-This appeal, by leave of this Court, is directed against the judgment of a learned Single Judge of the Lahore High Court dated 3-6-1975 in Civil Revision No. 544 of 1975.
2. The dispute relates to a piece of land in Tehsil Okara. A suit was filed by the first respondent agains: the appeliant and respondents Nos. 2, 3 and 4 for joint possession of this land in the Court of a Civil Judge First Class, Okara. The learned Civil Judge, by his order dated 7-I1-1974, decreed the first respondent's claim against the appellant and the other respondents on the ground that the latter had admitted his claim that was made by him in his plaint and the appellant had not filed any written statement controverting it.
3. The case of the appellant, however, is that she did not admit the claim of the first respondent. It appears that an Advocate had appeared on her behalf and filed a Vakalatnanra which purported to have been given by her as also by the respondents Nos. 2 to 4. Later on, another Advocate also filed a separate Vakalatnama exclusively on her behalf and he also appeared on various dates of hearing before the Trial Court and had also undertaken to file a written statement on her behalf.
4. However, no written statement was filed by him although the case was adjourned on several occasions for this purpose. The learned Civil Judge had, therefore, decreed the suit against the appellant also, acting under Order VIll, Rule 10 of the Civil Procedure Code, observing that the plaint filed by the first respondent had been verified on oath and no written statement controverting the allegations therein had been filed. It may be mentioned that the learned Civil Judge did not consider that the recording of any evidence on behalf of the plaintiff (first respondent) was necessary in these circumstances.
5. The appellant challenged the decree passed against her by filing an appeal before the District Court. Herein she urged two grounds in the main : firstly, that she had never received notice of the suit nor had ever engaged or appointed any Advocate to represent her and secondly, to quote her own words "the lower Court has decided the case without recording any evidence whatsoever, even the statement of the plaintiff (respondent No. 1) was not recorded".
6. The appellant's appeal was. however. Dismissed by the learned District Judge vide order dated 10- 5-1975. Feeling dissatisfied she filed a revision in the Lahore High Court and reiterated her contentions that she had not been served with a notice of the suit filed by the first respondent and that the Trial Court had erred in decreeing the suit against her without recording any evidence merely because of her failure to file her written statement before the High Court.
7. In support of her last-mentioned contention she relied on a judgment of the Lahore High. Court in the case of Sh. Abdus Saboor & Brothers v. Genesh Flour Mills Co. Ltd., Lyallpur (PLD 1967 Lah. 779 The learned Single Judge of the High Court, however, after hearing the appellant dismissed the revision in limine vide order dated 3-6-1975 and it was observed that the ratio of the precedent case of Sh. Abdur Saboor was really against the contention being raised by her. The appellant, thereupon, moved this Court for grant of leave to appeal and leave was granted by this Court mainly to consider whether the suit of the first respondent could A have been decreed without recording any evidence whatsoever and if the High Court had correctly understood the ratio of Abdus Saboor's case.
8. Before us, the learned counsel of the appellant first attempted to argue that the question of service upon the appellant, who was Pardahnashin lady, should have been examined more fully. We feel, however, that if a counsel had indeed appeared on her behalf, the question of service would become of secondary importance. Since it could not be disputed that a counsel did appear before the Court and he had represented before the Court that he was authorised by the appellant to appear on her behalf the learned counsel tried to convince us that the appellant had not really given any power to any counsel to appear on her behalf in the Court. But if b this was the position then, as rightly observed by the learned Single Judge, the appellant should have prayed to the learned District Judge to get her admitted thumb-impression compared by an expert with her purported thumb-impression affixed on the power of attorney filed before the Trial Court by the Advocate. However, no prayer of such a kind was made.
9. We agree with the approach of the learned Judge its the High Court and would add that the appellant could also have moved the Bar Council to take action against the two counsel who filed powers of attorney in Court claiming that these were given to them by the appellant or should at least have got the said counsel summoned in Court and required them to establish that they had indeed been engaged by her. Nothing of the kind was done. The plea that the counsel had appeared in the Trial Court without her authority was, therefore, rightly rejected by the learned Courts below.
10. The second contention, which is more serious, is that Order VIII, Rule 10, C. P. C., does not entitle a Court to decree a suit even ex part only on the basis of the allegations made in the plaint alone and that before decreeing a suit it is necessary to record some evidence in support of the claim made in the plaint.
11. We observe that the provision;; of Order VIII, Rule 10, C. P. C., as they stood on the date of the Trial Court's judgment, namely, 7-11-1974 were in the following terms :- "Where any party from whom a written statement is so required fails to present the same within the time fixed by Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
12. The question is as to what is the true meaning of the word "so required". Some light is thrown on this question by Rule 1 of Order VIII, which provides :- "The defendant may, and, if so required by the Court, shall, at or l before the first hearing or within such time as the Court may permit, present a written statement of his defence."
13. In this case when the suit came up for hearing on 19-9-1974 the following order was passed :- (Sd.)
14. Civil Judge, Okara"
15. It may be mentioned that the appellant herein was defendant No. 4 in the suit.
16. Again when the suit came up for hearing on 4-10-1974 the following order was passed :- (Sd.)
17. Civil Judge, Okara"
18. Since no written statement was filed in pursuance of the order dated 4-10-1974 the suit was decreed vide order dated 7-11-1974 which is in the following terms :- (Sd.)
19. Civil Judge, Okara"
20. A perusal of the above orders shows that the appellant was required to file the written statement vide order dated 19-9-1974 and again vide order dated 4-10-1974. . After the failure to do so the Trial Court could, in view of the terms of Rule 10, Order VIII, pronounce the judgment against the defendant. The same view apparently was taken in Sh. Abdus Saboor and brothers v. Ganesh Flour Mills Co. Ltd., Lyallpur (supra) but it has been contended that this is not so. It is necessary, therefore, to examine this judgment more closely. The following observations have been made in this judgment
21. "Under rule 10, the Court has been given the discretion to `pronounce judgment against' the defendant. It does not mean at all that the Court is to take any furthrr steps to ascertain the truth of the contentions raised in the plaint. In the phrase `pronounce judgment against him' the words `pronounce' and `against him' are significant. Once the Court decides to exercise the discretion under rule 10, it has to pronounce the judgment against the defendant."
22. Later on the judgment, it was also observed :- "It is not necessary for the Court to record any evidence before it may pronounce judgment under rule 10 of Order VIll."
23. It was also explained that if in the judgment so pronounced the reason, given by the Court is that the defendant had failed to file the written statement then it becomes a judgment contemplated by Rule 10. It is true that the power given to the Court by this rule to pronounce the judgment against the defendant is discretionary and it may or may not pronounce the judgment against the defendant where the written statement has not been filed. Undoubtedly while exercising its discretion the Court will take into consideration all the facts and circumstances of each case. But where the discretion has been exercised and judgment pronounced the same is not normally to be interfered with. But where it is exercised arbitrarily the appellate Court can always intervene.
24. However, where the discretion has been exercised judiciously and judgment pronounced the same will be a. Valid and legal judgment even though it has been passed without recording any evidence whatsoever.
25. In our view the judgment in Sh. Abdus Saboor's case supports the view taken by the learned Single Judge in the High Court and the plea that it has been misinterpreted does not appear to be correct. We also agree with the view taken in Saboor's case. Hence this appeal must fail. It is, accordingly, dismissed hereby. The parties, however, are left to bear their own costs.