The Lahore Municipal Corporation has challenged the judgment and decree dated 23-7-1977 whereby the learned Additional District Judge set aside the judgment and decree passed by the Civil Judge, Lahore dated 30-5-1977 and decreed the suit filed by Muhammad Sarwar Nasim, herein the respondent plaintiff. The learned first Court of appeal decreed the suit under Rule 10 Order VIII of the Code of Civil Procedure.
2. The facts in brief are that on 20-4-1976, Muhammad Sarwar Nasim filed a suit for declaration to the effect that the orders passed by the Vice-Chairman Municipal Coproration, Lahore dated 6-4- 1969 and the order passed by the appellate authority were without jurisdiction, without lawful authority on the basis of colourful exercise of authority. It was claimed that he was serving as a clerk in the Municipal Corporation, Lahore, that the Chairman of the Municipal Corporation bears a malice against him on account of his unjust and intransigent conduct by which they were harmed, that the said officials of the Corporation got instituted inquiry against the plaintiff. The Enquiry Officer submitted the report to the Vice- Chairman who passed the impugned order.
3. The Municipal Corporation was afforded a number of opportunities to file the written statement.
Ultimately on 26-2-1977 the learned Civil Judge First Class took punitive action under Order VIII rule 10 of the Code of Civil Procedure and closed the defence of the Municipal Corporation, proceeded to record the evidence of the respondent/plaintiff who got his statement recorded and tendered in evidence documentary evidence comprising of EX.Pl, Ex.P2 Ex.P3, Ex.P4, Ex.P5 Ex.P6. Ex.P7, Ex.P8, Ex P9, Ex.P10, Ex.P.1, Ex.P12, Ex.P13 Ex.P14, Ex.P15, and Ex.P16.
4. Learned trial Court by judgment and decree dated 30-5-1977 dismissed the suit holding that the respondent-plaintiff had failed to substantiate his case or bring on record the material. On the question of malice he observed as follows: "The relevant record of the impugned order has also not been produced in the Court. So I am unable. To look into the merits or demerits of the impugned order. Further the impugned order was a document of basic importance for the proper adjudication of this suit, that has not been produced so far. In this view of the matter the Court is unable to give any finding about the impugned order".
5.On appeal, the learned Additional District Judge varied the aforesaid decision in the following words:-- "A perusal of the file would show that the respondents were given sufficient opportunity to prepare their written statement. Order 8, rule 10 enjoined on the trial Judge to have pronounced judgment against the defendant without proceeding further when the case of the defendants had been closed. Learned trial Judge has failed to exercise jurisdiction vesting in him under Order 8 rule 10 C.P.C. The said plea of the defendants is not tenable and it is rejected. The plaintiff has already stated on solemn affirmation that the impugned order of his dismissal was mala fide and illegal.
This statement was not rebutted by any evidence whatsoever. The impugned decree and judgment, therefore, cannot be upheld. The appeal is accepted and under Order 8 rule 10 suit of the appellant is decreed with costs. The appellant is also allowed costs of the appeal. Advocate's fee is fixed at Rs.100".
6. The main grounds urged in the memo. Of appeal are that the learned Additional District Judge had fallen into error of law by assuming that the Court was bound to decree the suit if it acted under Order 8 rule 10 of the Code of Civil Procedure and strike of the right of defence of the defendants. According to the contention of the appellant, the first Court of appeal could not decree the suit on the basis of assertion made in the plaint.
7. The next point in the memo. Of appeal is that the contesting respondent admitted in his statement that he questioned the validity of the impugned order in the constitutional jurisdiction before the High Curt without any success. The Supreme Court also declined to grant leave against the said order of the High Court. According to the appellant, therefore, the Civil Court was not competent to reopen the matter in view of the principle of res judicata.
8. Learned counsel for the respondent supported the impugned decision. It was represented with a lot of emphasis that it was a bounden duty of the Court to decree the suit whenever it came to the conclusion that the defendant had failed to file the written statement despite the order of Court.
Reliance was placed on Sh. Muhammad Sharif v. Haji Ghulam Gilani PLD 1961 Lab. 609, Sh. Abdul Saboor and Brother v. Ganesh Flour Mills Co. Ltd., Lyallpur PLD 1967 Lab. 779, Sardar Sakhawat-ud- Din and .5 others v. Muhammad Iqbal and 2 others (PLD 1983 Lab. 448), Muhammad Shari v.
Muhammad Bashir and 17 others PLD 1982 Lab: 576.
9. I have heard the arguments of the parties and perused the record with great care. Learned counsel for the appellant did not enter appearance and the record was examined with the help of the learned counsel for the respondent who was gracious enough to give the facts of the case and also assisted the Court on the question of law. The representative of the Municipal Corporation also was in attendance.
10. The questions calling for consideration in this case are :(i) whether the Court is bound to decree the suit under Rule 10 Order VIII of the Code of Civil Procedure when the Court declines to grant adjournment to the defaulting defendant and proceeds to strike of the defence of the defendant straightaway without recording evidence, (ii) whether the Court can proceed and record the evidence of the plaintiff in such a circumstance and decide the case on merits.
11. In order to resolve the controversy it appears advantageous to examine the Rule 10 of Order VIII of the Code of Civil Procedure which is as follows:- "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".
12. A plain reading of the rule indicates that whenever a defendant fails to file the written statement in consonance with the mandate of the Court, the Court has two alternatives; it may proceed to pronounce the judgment against the defaulting defendant or may make such order in relation to suit as it thinks fit. Therefore, the contention of the learned counsel for the respondent that the Court had only one option i.e. To decree the suit is totally misconceived and deserves to be rejected. Such a construction would simply be destructive of the Rule 10 Order VIII of the Code of Civil Procedure.
13. The rule 10 ibid came up for consideration before the superior judiciary in a number of cases. It will be appropriate to notice a few of them.
14. The aforesaid proposition came up for consideration in the case Nisar Ahmad and others v.
Habib Bank Ltd. (1980 CLC 981) in which it was held that:- "The provision of striking of defence requires greater care on the part of a Court, as it shuts out one party to defend itself and point out defects in the case of the other party, leaving the Court virtually at the mercy of the latter to do justice between the two parties. In the present case, after striking out the defence of the defendants-appellants, the learned trial Court purported to act under Order VIII, Rule 10 and decreed the suit of the plaintiff-Bank. No doubt, the later provision allows that when one party fails to file written statement after having been required to do so, the Court may pronounce judgment against him but the important point to note is that the Court may pronounce "judgment", and judgment does not mean decreeing the suit ipsi dixit without any proof whatsoever".
15. Rule 10 Order VIII of the Code of Civil Procedure came up for consideration in Haji Muhammad Moosa and another v. Provincial Government of Baluchistan (1986 CLC 2951) in which it has been observed that:- "It may be seen that in the event of defendant's failure to file written statement within specified time the trial Court enjoys jurisdiction either to pronounce judgment or to make such order as it deems fit. In this matter it appears that trial Court was inclined to pronounce judgment. But factually no comments on the merits of the case were at all made. Evidently without giving any reasoning or even indicating application of mind the suit has been decreed. Word "decree" has been defined in Section 2 (2) of Civil Procedure Code, whereas procedure for passing judgment is explained in Order XX of C.P.C. Obviously for a proper judgment and decree there has to be formal expression of the Court conclusively determining matter in controversy which should be essentially based on sound judicial grounds in the light of available record".
16. The rules laid down in Bilqis Begum v. Syed Ali Turab and others (1980 CLC 930) were examined in Malik Muhammad Saeed v. Mian Muhammad Sadiq (1985 MLD 1440) where it was observed as follows: "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 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 whatsover 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 C.P.C. Doing away with absolute requirement of the Evidence Act.
16: 17.
18.We are also not oblivious of the principle that Courts favour adjudication 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 1976 SC 159) and Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382)".
17. The same rule was propounded in Indian cases XII Volume No.215. The relevant portion is as under:- "Nanhe v. Saiyad Tasadduq Hussain 212: It is urged on behalf of the applicant that the Munsif acted with material irregularity because under Order VIII, Rule 10 he was only empowered to pronounce judgment against the defendants and in this case there is no judgment, but merely an order decreeing the plaintiffs claim. A judgment is defined in Section 2 (9) of the Code as the statement given by the Judge of the grounds of a decree or order. Therefore, the law contemplates that the Court should go into the case and pronounce a decision upon the facts so far as they are before it.
If the learned Munsif had examined the plaintiff and considered the, documents produced before him and written a decision stating that he believed the plaintiffs evidence that would have been a judgment within the meaning of Order VIII, Rule 10 but I cannot hold that the order of the Munsif in this case was a judgment. I am, therefore, of opinion, that there was a material irregularity. The learned pleader for the respondent refers to the case of Kristanmma v. Chapa Naidu, where sit is said that material irregularity, within the meaning of Section 622 of the old Code of Civil Procedure, means, "a perverse decision on a question of law or procedure, a decision being perverse where it is a conscious departure from some rule of law or procedure", and he contends that there is no departure from any rule of law or procedure in this case, I must assume that the learned Munsif knew what the meaning of a judgment is. A judgment certainly means some kind of decision upon the merits, but there is none in this case"
18.The ratio emerging from the aforesaid authorities are:-- (i)that the punitive action is to be taken under Rule 10 Order VIII ibid with great caution in a very severe circumstances.
(ii)that the Court has two options, it can pronounce the judgment against the defaulting.
Defendant or it can proceed to record the evidence of the B plaintiff as in a case of ex parte proceedings when rendering the judgment.
(i.e)that the Court is not to solely act upon the plaint. It has to look upon the merits and demerits of the case in material furnished by the plaintiff in order to record a judgment.
19. Applying these rules to the case in hand it is quite clear that the Additional District Judge committed a grievous error of law by assuming that under Order VIII rule 10 C.P.C..He was bound to decree the suit on the basis of simple plaint and ignored the salutary principle of law that the plaintiff is to succeed on the strength of his own case. The learned Additional District Judge failed to notice that neither the impugned order was on the record nor the proceedings of the Enquiry Officers were there for his perusal. Therefore, he was not in a position to determine the validity of the impugned order. It is to be noticed that the first Court of appeal even did not look into that the trial Court had given the judgment with careful consideration of entire material before it and application of law. It was on the record that the respondent had approached the High Court in order to assail the validity of the impugned order in constitutional jurisdiction. The High Court dismissed the petition. The Supreme Court had also refused to grant him leave. Even these orders were not placed on record.
20. In the result I find that the order of the learned Additional District Judge cannot be sustained in view of the reasons given above. I therefore, accept this second appeal, set aside the judgment and decree passed by the learned Additional District Judge dated 23-7-1977 and the judgment of the trial Court dated 30-5-1977 is restored. The parties are left to bear their own costs.