1. MUHAMMAD AFZAL ZULLAH, ACTG.C.J.--This judgment will dispose of two Civil Appeals No. 177 of 1983 and No. 164 of 1986. The main questions involved therein relate to interpretation of Rule 10 of Order VIII, C.P.C. In Civil Appeal No. 164 of 1986 the additional question of failure of the High Court to restore a Civil Revision after its dismissal for non-prosecution, is also involved.
2. The facts in Civil Appeal No. 177 of 1983 are that respondents Nos. l and 2, namely, Muhammad Iqbal and another, filed a suit against appellants Nos. l and 2, namely, Sardar Sakhawat-ud-Din and another, and respondent No.3, Shah Nawaz for specific performance of an agreement to sell certain land. The defendants in the suit filed separate written statements. In their written statements, respondent No.3 had confessed judgment but appellants Nos. l and 2 had resisted the suit. Thereafter, it was learnt by the plaintiffs that some of the disputed land had been sold to appellants Nos.3 and 4, namely, Abdul Latif and others. Therefore, with the permission of the Senior Civil Judge, Rahimyar Khan, who was seized of the suit, they amended the plaint and impleaded appellants Nos.3 and 4 as additional defendants. Then the original defendants were asked to file amended written statement while the additional defendants were required to put in written statement. This was, however, not done by them although several opportunities were afforded to them for so doing. As a result, the learned Senior Civil Judge pronounced judgment against the defendants and decreed the suit by invoking the provisions of Order VIII, rule 10, of the Code of Civil Procedure. The appellants, therefore, came up in appeal to the High Court which having been dismissed, leave to appeal was granted to examine the question whether a decree could be passed against the defendants under Order VIII, Rule 10 if it was a case of no evidence.
3. The facts in Civil Appeal No. 164 of 19136 and the reasons for grant of leave to appeal in that case, as narrated in the leave granting order and taken from the pleadings are "that the appellant was married to the respondent on 9-7-1980 and a dower of Rs.10,000 was fixed at the time of marriage.
4. The spouses fell out immediately after the marriage and the divorce took place on 19-7-1980 and the amount of Rs.10,000 was paid immediately when the respondent filed a suit in this behalf. That the respondent filed a suit for the recovery of Rs.25,000 as value of articles of 'Jaheez'., The suit was pending in the Court of Mr. Zewar Ahmad, Civil Judge, Lahore. On 24-3-1982 power of attorney was filed and adjournment was sought for the filing of written statement on 13-4-1982. It would be pertinent to point out that appellant No. l at the relevant time was posted as Deputy Chief Planning Commission, Islamabad while appellants Nos.2 to 5 were at Lahore. Without the instructions of appellant No. l the written statement could not be prepared and that was the reason for seeking adjournment. Only one opportunity was given and the case was fixed for 13-4-1982 when the same was decreed under Order VIII, rule 10, C.P.C. Before the counsel for the appellants could reach the Court. It was done in the early hours of the day. As a matter of fact the written statement was ready and was presented by the clerk and by the time the counsel had reached, decree had been passed. The appellant filed an appeal which was dismissed on 19-10-1982 by the learned Additional District Judge, Lahore. Then the appellant filed Civil Revision No.953-D of 1983 in the Lahore High Court which was admitted for regular hearing after hearing the opposite-party at limine stage, and finally the case was fixed for hearing before Mr. Justice Akhtar Hasan and his Lordship was pleased to dismiss the same for non-prosecution on 16-10-1985. The Court of Mr. Justice Akhtar Hasan and Mr. Justice Ch. Amjad Khan are adjacent.The counsel for the appellants had a case before the Court of Ch. Amjad Khan and had informed the Reader about the same. Not only that the clerk of the counsel for the appellants as well as their attorney were present in the Court. The revision petition was dismissed for non---prosecution while the counsel for the appellants was on his legs in the adjoining Court. The counsel for the appellants immediately drafted the application for restoration of the case on the same day but the same was not entertained by the office, and therefore, the same was filed on 17-10-1985 and was also dismissed in limine on 20-10-1985.
5. Alongwith the application the counsel for the appellants had filed his own affidavit and that of the clerk as well as attorney but they were not taken into consideration and the learned Judge in Chamber dismissed the application."
6. "Learned counsel has tried to show that it was without appellants or their counsel's default that the revision was dismissed for non-prosecution, therefore, restoration should have been ordered. On this point the statements of facts in the impugned order dated 22-10-1985 are at somewhat variance with the facts stated in the petition. The fact, however, remains that the appellants have not had any hearing throughout the hierarchy of Courts below. The question whether in the interest of justice the revision petition should not have been restored for hearing on merits needs examination."
7. "It also needs examination whether the revision was rightly dismissed on 16-10-1985; and, whether the suit could have been decreed against the appellants under Order VIII, Rule 10--the argument being that the date was fixed for filing of the written statement on the request of the appellants, the Court had passed no order for compulsory filing of written statement so as to invoke Order VIII, Rule
10. Reliance has been placed also on leave granting order in Civil Appeal No. 177 of 1983 (Sardar Sakhawat-ud-Din etc. v. Muhammad Iqbal and others).
8. Order VIII Rules 1, 9 and 10 read as follow:- 1."Written statement.--The defendant may, and , if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence: "Provided that the period allowed for filing the written statement shall not ordinarily exceed ninety days."
9. "9. Subsequent pleadings.--No pleading subsequent to the written statement o a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same."
10. "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 Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
11. It is clear from the combined reading of Rules 1 and 9 that amongst others three types of written statements can be filed by a defendant.
12. (1)As a right without any formal permission of the Court.
13. (Rule1).
14. (2)When it is so required by the Court to file a written statement.
15. (Rule 1 and Rule 9)
16. (3)When under some circumstances it is by the leave of the Court.
17. (Rule 9)
18. It is obvious from Rule 10 that no adverse results under these rules are to follow on failure to file written statement in cases mentioned in items Nos. l and 3 above. But penal consequences of "pronouncement of judgment against" him when the defendant fails to file written statement when "so required"--as is indicated in item No.2 above, would follow.
19. As it is a penal provision it will have to be strictly construed. Hence wherever a reasonable doubt arises regarding its interpretation or implementation, it shall have to be resolved in favour of the victim of its application. Otherwise too, its requirements would have to be established like those of Order XVII, Rule 3 which is similarly penal in nature. See Industrial Sales and Service, Karachi and another v. Archifar Opal Laboratories Ltd. , Karachi PLD 1969 Kar. 418.
20. Rule 10 is in two parts. No doubt under the first part a judgment can be pronounced against the defendant, but it will be pronounced only if it can be so done under the law. For example, if the suit is for enforcing a contract or obtaining any other relief which is prohibited by law expressly or impliedly, the judgment could not be pronounced. Similarly no decree could be passed if there is no cause of action shown in the plaint or the material placed before the Court or relied upon by the plaintiff even if not in the form of evidence will make it a case of no evidence (if the trial is taken to its logical ends). Hence, in all such cases and other similar cases it will be impermissible for the Court to proceed under the first alternative. The proper course then would be to proceed under the second alternative. It will be in rare cases, when, on account of the material placed on record that it would not only be legal but also just and fair, on the merits of the case, that judgment is pronounced under the first part. Otherwise, in the cases like the two before us it would not be proper to proceed under the first part. Like Rule 12, Rule 10 also creates a liability and it is not mandatory for the Court to pronounce judgment or strike off the defence. The matter being in the discretion of the Court the penalty should not be imposed without a compelling reason--but as emphasised above that too not without satisfying the conditions as are being discussed e.g., even then it is not mandatory to pronounce judgment without satisfaction of the Court that it is good case on merits for doing so.
21. There is another very important aspect of the matter. All the three types of written statement mentioned earlier do not entail penal consequences. Therefore, it should always be absolutely clear from the proceedings that the written statement on account of which penalty is sought to be imposed was "required", by the Court. It was neither as of right (Rule 1) nor as result of permission (Rule 9). The use of word "required" is not without significance. It does not permit a routine order without application of mind to the "requirement" and/or the need. Therefore, it is essential that whenever a written statement is to be made subject of the penal rule 10, there should be proof on record that the Court had "required" it by application of mind to the need and that too in a speaking order. Without the same, many innocent parties would be trapped in a technicality without fully realising the implications. In this connection, it is made clear that whenever adjournments are granted for production of a written statement which can be filed as of right under Rule 1 or which is permitted to be filed under rule 9, that would not satisfy the law regarding the "requirement" of the Court. It is only the written statement which is "required" and that too by "the Court" by a speaking order, which would entail the penal consequences of Rule 10. In these two cases it has been admitted before us that these requirements have not been fulfilled.
22. The question of restoration of the civil revision by the High Court in Civil Appeal No. 164 of 1986 is simple. The assertions made by the appellants regarding the circumstances in which unfortunately the appellants counsel was late in reaching the Court from another court-room have not been controverted by the respondent-side. The circumstances were such that the revision merited restoration and decided on merits.