This civil revision is directed against the judgment of the District Judge, Toba Tek Singh dated 18th of December, 1988, whereby while accepting the appeal of the respondent, he set aside the order, dated 16th of July, 1988, passed by Civil Judge, Kamalia under Order 8, Rule 10, C.P.C.
2.The facts relevant to the disposal of this revision are that petitioner Mst. Nabila Parveen filed a suit for cancellation of a sale-deed and injunction on 20th of February, 1938 in which the two respondents Roshan Din and Sardar Muhammad were cited as defendants. The summons, issued to the defendants, could not be served for one reason or another with the result that the trial Court directed that the defendants be served through proclamation in a newspaper for 4th April, 1988. On this date, the proclamation had not been received and the matter was adjourned to 11th of April, 1988, when Ch. Munir Ahmad, Advocate filed a power of attorney on behalf of respondent No.1 and also submitted a memorandum of appearance on behalf of the other respondent namely Sardar Muhammad who was residing in United Kingdom. The suit was adjourned to 28th April, 1988 for filing the written statement on which date a request for adjournment was made and the case was adjourned to 16th of May, 1988. It appears that thereafter the respondents were allowed five further opportunities to submit their written statement but they failed to do so despite the fact that on two of the dates costs had also been imposed on them. The trial Court, therefore, on 16th of July, 1988 proceeded under Order VIII, Rule 10 of the Civil Procedure Code and struck off the defence of the respondents/defendants. It was against this order of the trial Court that the respondents filed the appeal which was accepted by the District Judge, Toba Tek singh.
3. From a narration of the facts mentioned above, it is evident that the respondents were allowed as many as five opportunities to file the written statement but they failed to do so. Even the costs imposed on them for adjournment were not paid. The District Judge, while accepting the appeal of the respondents, failed to advert to this aspect of the case but confined himself to the interpretation of the proviso to Order VIII, Rule 10 of the Civil Procedure Code introduced by the law Reforms Ordinance, 1972, which provided that ordinarily the period allowed for filing a written statement shall not exceed 90 days. It, however, does not make it incumbant upon the Court to allow the full period of ninety days for filing the written statement. The proviso fixes the outer limit of the time but does not prescribe the minimum period during which a defendant, can be asked to rile a written statement which of course has to be reasonable. If a Court finds that a defendant was acting contumaciously in not filing the written statement despite repeated adjournments it need not wait for the expiry of 90 days before taking any punitive action. In this view of the matter, the order of the District Judge does not appear to be sustainable.
4. However, it is well-settled that the revisional jurisdiction is discretionary and may not be exercised in a case where it appears to the Court that substantial justice has been done. Law favours adjudication on merits and the penal provisions of the Code are to be strictly construed and sparingly applied. In the l present case I have refrained from restoring the order of the trial Court striking off the defence as I feel that the ends of justice will be better served, if the respondents are allowed one further opportunity to file their written statement
5. As a consequence of the above, while dismissing this revision petition, I allow the respondents to file their written statement in the trial Court on 30th of March, 1989 on the payment of Rs.2,500 as costs, which have been paid by the respondent to the learned counsel for the petitioner.
6. The parties shall appear before the trial Court on 30th of March, 1989. The Civil Judge shall dispose of the suit expeditiously without giving any unnecessary adjournment.