Through this Constitutional Petition, Abdul Ghafoor, Sattar and Yousaf want this Court to declare the judgment and decree passed by the Assistant Commissioner/Collector, Bahawalpur, respondent No. 6 on 15-3-1978, the judgments and decrees of the Additional Commissioner, Bahawalpur, and of the Member (Revenue), Board of Revenue, Punjab, respondent Nos. 7 and 8 to be without lawful authority and of no legal effect.
2. The facts leading to this petition, briefly, are that Abdul Aleem and 4 others, filed a suit for possession by pre-emption against the petitioners on the basis of their being tenant in cultivating possession of the suit land. Since the petitioners/defendants failed to file written statement despite several opportunities given to them, so their defence was struck off under Order VIII Rule 10 CPC and the suit was decreed forthwith in favour of the respondents/plaintiffs subject to the payment of Rs. 60,000/ as sale price. Feeling aggrieved thereby the petitioners filed appeal which was dismissed by the Additional Commissioner on 20-7-1978. Feeling still dis-satisfied the petitioners filed revision before Member (Revenue) Board of Revenue Punjab, Lahore, which was dismissed on 26-2-1980, hence this petition.
3. The learned counsel for the petitioners relied on Abdul Saboor and others v. Ganish Flour Mills Co.
Ltd. (PLD 1967 Lah. 779), to contend that the failure of the defendant to file written statement was not necessarily to result in judgment against him under Order VIII rule 10 CPC. The power given by this rule to the Court is to be exercised judiciously and is not necessarily to result in judgment against defendant. The learned counsel further contended that the learned Collector has failed to take into consideration the peculiar facts and circumstances of this case; that the orders for the adjournment of the case were written by the Reader and not by the Presiding Officer. The learned counsel also submitted that since Federal Shariat Court has declared the law envisaged in para 25 of the Martial Law Regulation No. 115 as ultra vires of the Constitution, therefore, the decree could not have been passed on the basis of the respondents being tenant of the suit land. Learned counsel for the respondents has supported the impugned judgments and decrees.
4. I have considered the submissions made by the learned counsel for the parties with care. I find that despite several opportunities given to them, the petitioners failed to file written statement; that on the failure of filing written statement, the Court can decree the suit forthwith under Rule 10 of Order VIII C.P.C. That the sale price was not in dispute in this case, therefore, there was no difficulty at all in decreeing the suit for possession by pre-emption of the respondents and that the decree for possession by pre-emption having been passed before 30-7-1986, the judgment of the Federal Shariat Court declaring the provisions of para. 25 of MLR-115 having ceased its effect, was not applicable. The case law relied upon by the learned counsel for the petitioners is quite distinguishable.
Pursuant to the above discussion, the petition is dismissed, leaving the parties to bear their own costs.
H.B.T./A-788/L