Through this Regular First Appeal, the appellant namely Mirza Ali has challenged the judgment and decree, dated 4-9-1984 passed by the learned Senior Civil Judge, Dera Ismail Khan, by striking of the defence of the defendant No.1 appellant under Order VIII, rule 12 of the Civil Procedure Code.
2. The facts of the case are that Mst. Shahida Parveen plaintiff respondent No.1 filed a suit for possession of the suit house fully described in the heading of the plaint situated in the Municipal area of Dera Ismail Khan on the basis of title and also for the recovery of Rs.250 as mesne profits for the use and occupation of the house at the rate of Rs.1,300 per month w.e.f 20-8-1980 on 5th of May, 1983 alongwith interest at the rate of Rs.10 per annum and also for the period from 5-5-1983 onwards till the decree and final delivery of possession. It was alleged in the plaint that the plaintiff purchased one kanal of land out of Khasra No.2563 vide Mutation No.802 attested on legal and technical pleas. The defendant No.1 denied the title of the plaintiff-respondent No.1 in toto and alleged that he is owner in possession of the suit property.
3. On 24-10-1983 plaintiff-respondent No.1 submitted an application to the trial Court under Order VIII, rule 12, C.P.C. For the striking of of the defence of defendant No.1 appellant on the ground that the defendant No.1 appellant has failed to file the memo of address alongwith the written statement or any time prior thereto and that thereby, he has made himself liable to the striking of of his defence under the above-mentioned provision of law. The defendant No.1 --appellant in his replication dated 5-1-1984 did not controvert the allegation of the plaintiff-respondent No.1 regarding the non-tiling of the memo of address but insisted that the suit court proceed even without compliance with Order VIII, rule 11, C.P.C. And at the same time sought permission to rectify the default. The case lingered on for the adjudication of this matter till the passing of the impugned order on 4-9-1984.
4.We have heard the learned counsel for the parties for sufficient length of time and have perused the record of the case with their assistance.
5.It would be worthwhile to reproduce the provisions of Order VIII rule 11 and rule 12, C.P.C. For the proper appreciation of the matter in controversy.
"11.Address for service.--(1) Every party, whether original, added or substituted, who appears in any suit or other proceeding, shall, on or before the date fixed in the summons, notice or other process served on him, file in Court a proceeding stating his address for service.
(2)Such address shall be entered in the Register of suits to be maintained under Order IV, rule 2.
(3)Rules 20, 23, 24 and 25, Order V11 shall apply, so far as may be, to addresses for service filed under this rule.
12.Consequences of failure to file address. --(1) Where a party fails to file an address for service as provided in the preceding rule, he shall be liable to have his defence, if, any, struck out and to he placed in the same position as if he had not defended.
(2)The Court may pass an order under sub-rule (1) suo Motu or on the application of any party."
6.The above provisions of law came, up for consideration in case Mst.
Nazir Begum and another v. Sheikh Abdul Rashid and another (PLD 1979 Lahore 546) before Mr. Justice Aftab Hussain who, in para. No.16 of the judgment observed as follows: " The object of this provision is patently clear from rule 11 of Order V111 and rules 20, 22, 23 and 25 of Order VII. It is to evolve a procedure in addition to the procedure for service of a party described in Order 111, rule 5 which maybe abortive where no counsel is engaged or for example where the counsel is disabled to serve a party during proceedings of a suit. This object would be defeated if the rule is interpreted in the manner in which the learned counsel for the petitioner would wish the Court to interpret it. The clear object of the rule is that if the defendant has put in appearance, he is bound to file his form of address for service. It is for this reason that the language of the rifle, in relation to address is couched in mandatory terms and is linked with a penalty clause. The peremptory nature of the rule requiring the registration by a party to proceeding of his address was emphatically pointed out in Municipal Committee Lahore v. Kesho Ram AIR 1Q?.9 Lah_ 459.
7. The Supreme Court in case Niaz Muhammad Khan v. Mian Fazal Raqib reported as PLD 1974 Supreme Court 134, declared I he following guidelines, for the interpretation of statutes: "As a general rule a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the Act done in disobedience to the provisions:"
8. However, the same question was also considered by this Court in case Muhammad Amin and others v. Shamroz Khan and others (PLD 1978 Peshawar 141), in which the said provisions were given a liberal meaning and were interpreted in the following words: "From the meaning given in the word "liable" it appears to me that its use in the expression "shall be liable" in Order VII rule 21 and Order VIII, rule 12 is not without significance. In some of the meanings given to the word liable in the various dictionaries cited above it cannot be said that it necessarily puts an obligation on the Court to dismiss the suit or to reject the plaint in case the plaintiff- petitioner who fails to comply with the provisions of Order `3I, rule 19, to strike out the defence of the defendant in case of failure to comply with the provisions of Order VIII, rule 11. If the meaning as given in the Dictionaries is to be scrutinised thoroughly the use of the phrase "shall be liable" would mean that the Court has a discretion to exercise in favour of the defaulting party in suitable cases."
This very judgment was maintained by the Supreme Court as is clear from the judgment of the Supreme Court reported as PLD 1978 Supreme Court 89.
9. The above citations lead to the conclusion that the compliance of Order VIII, rule 11, C.P.C.
Regarding the filing of address by the defendants is a must and its non compliance necessarily entails the striking of, of their defence and placing them in the same position as if they had not defended. The defaulting party cannot, as of right, claim the indulgence of the Court. However, in view of the later authorities mentioned above, the Courts have the discretion not to resort to the penal provisions contained in Order VIII, rule 12, C.P.C. And to accept the A late filing of memo of address if there is reasonable explanation advanced by the defaulting party. In the case reported as PLD 1978 Peshawar 141 referred to above the defaulting defendant had filed the memo of address alongwith the replication. In the case in hand the appellant failed to advance any cogent reason for his default to comply with the mandatory provisions of Order 8, rule 11_ C.P.C. So much so that even when it was brought to his notice through the filing of the application by the plaintiff- respondent No.1, he was adamant that the non--compliance with the said provisions of law was not fatal, as a result of which the case lingered on, for sufficient time. This attitude of the defendant-appellant disentitled him to the discretion of the Court and consequently the learned lower Court resorted to the provisions of Order 8, rule 12, C.P.C., struck of the defence of the defendant-appellant and decreed the suit of the plaintiff-respondent No.1. We do not find any illegality or irregularity in the exercise of discretion by the learned lower Court.
10. The result is that this appeal is dismissed with no order as to costs.