' The appeal is addressed against the order of the District Judge, Mirpur, passed on April 26, 1989, whereby the order of Sub-Judge, Dadyal passed on February 18, 1989, decreeing the suit for specific performance of agreement in respect of the suit land, was set aside and the case was remanded for fresh decision.
2. Walayat Hussain, plaintiff-appellant brought a suit for declaration and specific performance of agreement allegedly executed by defendants Nos.2 to 5 on October 20, 1985, in respect of the suit land measuring 23 kanals 6 marlas out of 130 kanals 19 marlas, Khewat No, 36, situate in village Rajoa, Tehsil Dadyal. The suit was instituted on October 6, 1986. The defendants were proceeded ex parte. However, on the application of the defendants, ex parte order was set aside to the extent of defendant No,1 on payment of Rs,500 and other defendants on payment of Rs,200 as costs. This order was passed on October 31, 1988. Despite availing 4 opportunities they failed to submit written statement, as such decree was passed in favour of the plaintiff against defendants 1 to 5, on February 18, 1989, under Order VIII, Rule 10, C.P.C. And suit was adjourned with respect to defendants Nos.6, 7 and 8. This order was challenged in appeal before the District Judge. The learned District Judge set aside the order and remanded the case for its decision after getting written statement of the aforesaid defendant-respondents.
3. Ch. All Muhammad the learned counsel for the appellant assailed the order of the District Judge on two counts:--
(i) That under Rule 10, Order VIII, CPC, the Sub-Judge was vested with discretion to pronounce the judgment against the defendants Nos.1 to 5 who, despite direction of the Court, failed to produce their written statement; and
(ii) that the District Judge fell in error in allowing the defendant-respondents to file their written statement on remand of the case.
' Agha Ashiq Hussain, the learned counsel for the contesting defendants-respondents, supported the impugned order of the District Judge. It was emphasized that the provisions of Rule 10, Order VIII, C.P.C. Were discretionary. The Court was competent to pronounce the judgment by applying its mind to the pleadings and evidence on record, on the satisfaction that there was ample proof in support of the claim of the plaintiff. In absence of satisfactory evidence, the judgment could not be pronounced against the defendants and the Court had to fall back upon the second part of the Rule and had to pass an order to meet the ends of justice. The learned counsel relied on the following authorities:- ' PLD 1970 AJ&K21; 1987SCMR 1365;PLD 1987SC 22; 1981 CLC 1184; AIR 1945 Mad. 299; 1985 MLD 521; 1985 MLD 1440 and PLD 1987 Lah.
63.
' Mr. Agha also raised objection to the jurisdiction of the trial Court relying on the judgment of this Court recorded in Raja Dil Muhammad's case, on May 14, 1983. It was argued that the price of the land being more than Rs,25,000, the Sub-Judge was not vested with jurisdiction to try the suit.
4. The order of Sub-Judge was passed under Rule 10, Order 8, C.P.C. It is, therefore, permissible to construe the provisions, in order to find out the intended object of the legislature. It is (in R.10) postulated that where any party from whom a written statement is so required, fails to present the same within the time fixed by the Court, the Court may pronounce the judgment against him, or make such order in relation to the suit as it thinks fit. The operative part of the Rule empowers the Court to pronounce the judgment against the defendant when he fails to present his written statement as directed by the Court. The word 'so', obviously refers to provisions of Rules 1 and 9.
Rule 1 provides that 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.
Here, it is relevant to state that the proviso to this Rule is not in force in Azad Jammu and Kashmir as this provision was added under Law Reforms Ordinance, 1972 in force in Pakistan. Thus, a defendant, as a matter of right, may file written statement on the first hearing or on the subsequent date. In case the defendant is directed by the Court to furnish written statement and specific time is fixed by the Court, then he is under obligation to present the written statement otherwise he has to face the consequences as contemplated under Rule 10. The next situation warranting for filing the written statement is controlled by the provisions of Rule 9. Under Rule 9, the defendant has to present his written statement with the permission of the Court. Thus, the scheme of law postulated under Rules 1 and 10 is to be construed conjunctively. Be that as it may, the defendant who fails to present the written statement when so required by the Court, the Court is vested with discretion to pronounce the judgment against him.
5. The introduction of word "may" is deliberate. This is so as the Court has to pronounce the judgment against the defendant on the satisfaction:-
(i) That the omission to present the written statement was condonable; and
(ii) that there was no option except to pronounce the judgment against the failing defendant.
' This construction is permissible particularly in view of the concluding part of the language whereby the Court is empowered to pass any order it thought fit. The failure of the defendant to comply with the order of the Court by presenting written statement has to be considered in the light of any sufficient cause resulting in obstruction or difficulty in the way of the defendant to present his written statement. For, when the defendant satisfied the Court that the omission to present written statement was beyond his control, it was within the discretion of the Court to condone the omission. In order to pronounce the judgment, again, it was enjoined upon the Court to ensure as to whether it was able to pronounce the judgment on the basis of material placed before it. For in case the suit was time-barred, suffered from want of cause of action or territorial or pecuniary jurisdiction, it was not obligatory for the Court to pronounce judgment in presence of either of the aforesaid disqualifications. Thus in absence of objection of limitation, cause of action or jurisdiction, it was desired that some tangible material helpful to form an opinion, must be before the Court to pronounce the judgment.
This provision of Rule 10 is to be construed in juxtaposition to the provisions of Order XVII, Rule 3 of the Code. The provisions of Rule 3 contemplate that the Court shall decide the case at once. While construing the provision of Rule 3, the consensus is that there should be some material before the Court to enable it to pronounce a legal decision. On that premises, it is permissible to hold that while pronouncing judgment in compliance of the provisions of Rule 10, the Court must be in possession of some material to form an opinion to pronounce the judgment. In case of absence of either of the grounds listed above, when the Court considers that it is unable to pronounce the judgment it has to fall back upon the provisions of the concluding part of the Rule and to pass an order in exercise of its discretion, as it thought fit.
6. The language used in the Rule is directory in nature and not mandatory. This is so as the legislature purposely omitted penalty likely to be imposed on the defendant failing to present his written statement and used the word "may, so that a just and equitable order may be passed by the Court. The scheme of law, therefore, suggests that the Court may pronounce the judgment only on the satisfaction that the material necessary for pronouncing the judgment, was already before it. This view finds support from Sardar Sakhawatuddin's case 1987 SCMR 1365. Mr. Justice Muhammad Afzal Zullah, the learned Acting Chief Justice who spoke for the Court, recorded the following observations:- "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:
(1) As of right without any formal permission of the Court. (Rule 1).
(2) When it is so required by the Court to file a written statement. (Rule 1 and Rule 9).
(3) When under some circumstances it is by the leave of the Court (Rule 9).
' 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.1 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.
' As it is a penal provision it will have to be strictly construed. Hence whenever 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."
' In Malik Muhammad Saeed's case 1985 MLD 1440, a Division Bench arrived at an identical conclusion. Mr. Justice Fazal-i-Mahmood who recorded the order of the Court, observed as: "We have already noticed on perusal of the record that with plaint the plaintiff-respondent had filed photostat copies of the alleged agreement to sell and the receipts of payment. They were not even exhibited on the record nor the plaintiff examined in support of the case set up by him in the plaint. The learned Supreme Court in the case of Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160 had ruled that the documents which are not copies of judicial record, should not be received in evidence without any proof of signatures and handwriting of persons alleged to have signed or written them, even if such documents were brought on the record and exhibited without objection. In the case under disposal photostat copies of private documents had been filed with the plaint and at no stage they were tendered in evidence or exhibited. We, therefore, fail to appreciate how the learned trial Court was competent to rely upon photostat copies of private documents which were begging for proof. The analysis of the factual position obtaining on the record has led us to the conclusion that the judgment of the trial Court is not based on legal evidence. There are no features to be found in this case either of a defendant making admissions in written statement or confessing judgment. The provisions of Order VIII, Rule 10 on careful reading also bring out that the Court is not specifically empowered to pass a decree without recording evidence."
' In Shaikh Abdul Saboor's case (PLD 1967 Lah. 779), Mr. Justice Sardar Muhammad Iqbal (as he then was) examined the proposition among others, in the following position:- "The failure of the defendant to file the written statement when "so required", however, is not necessarily to result into a judgment against him under Order VIII, Rule 10, C.P.C. The power given to the Court by this Rule to pronounce the judgment is to be exercised only in its discretion. It may or may not pronounce the judgment. Since the Courts are performing judicial functions, they are to exercise discretion also judiciously. They have to take into consideration the facts and circumstances of each case. It is for this reason that an appeal is provided under Order XLIII, Rule 1 against the decision taken under Rule 10 of Order VIII. In a case where a power is exercised arbitrarily or without any substantial basis, the appellate Court can always intervene."
' In Abdul Qadoos's case (PLD 1970 A J & K 21), Mr. Justice Rahim Dad Khan construed the provisions of Rule 10 in identical fashion though on different grounds. The observation is as follows:-- "Rule 10 of Order VIII also gives discretion to the Court either to pronounce judgment against the defendant or to make such orders in relation to the suit as it thinks fit. The question may arise when the Court is to pronounce judgment under Rule 10 and when to make order in relation to the suit it deems fit. The discretion in such cases must not be exercised in an arbitrary and capricious manner but on judicial principles keeping in view the facts and circumstances of each case. It was not proper, for the trial Court, when there was no evidence before it, in support of the claim of the plaintiff, to proceed under the first part of Rule 10 of Order VIII, to pronounce judgment. The discretion would have been well exercised if the Court had proceeded under second part of rule 10 which is less stringent in nature and does not deprive the defendant of the remedy"
' In Nagaratnam's case (AIR (32) 1945 Mad. 299), the provisions of Rule 10 of Order VIII, were construed in the following manner:-- "Rule 10 relates only to R.9 and cannot be taken to relate to R.I. The word "so" occurring in R.10 cannot possibly be related back to R.I. It must refer to something which is in close juxtaposition to itself and that can only be the provision of R.9. A Court has therefore, no jurisdiction to pronounce judgment under R.10 against the defendant who has failed to file his written statement.
' The Supreme Court of Pakistan, however, took a divergent view in Mst. Hakumat Bibi's case (PLD 1987 SC 22). Mr. Justice Nasim Hasan Shah , the learned Judge who recorded verdict of the Court, observed:-- "It was also explained that if in the judgment so pronounced the reason given by the Court is that the defendant had failed to file the written statement then it becomes a judgment contemplated by Rule 10. It is true that the power given to the Court by this Rule to pronounce the judgment against the defendant is discretionary and it may or may not pronounce the judgment against the defendant where the written statement has not been filed. Undoubtedly while exercising its discretion the Court will take into consideration all the facts and circumstances of each case. But where the discretion has been exercised and judgment pronounced, the same is not normally to be interfered with. But where it is exercised arbitrarily, he appellate Court can always intervene.
However, where the discretion has been exercised judiciously and judgment pronounced, the same will be a valid and legal judgment even though it has been passed without recording any evidence whatsoever."
' In the aforesaid case, the defendant who failed to present his written statement despite the direction of the Court, was declared to have admitted the suit of the plaintiff. This finding was challenged at various levels including the Supreme Court. The learned Judge, ongoing through the interim orders whereby the defendant was required by the Court to present written statement, arrived at the conclusion that the judgment was pronounced correctly though it was pronounced in absence of evidence. An identical view was expressed in Muhammad Munshi's case (1981 CLC 1184) by Mr. Justice Muhammad Ilyas. This view rests on broad and liberal construction of the provision. It leaves no chance to escape the liability. It deserves a second thought. I say so with due respect.
7. In the present case, defendants Nos.1 to 5 were originally proceeded against ex parte. The ex parte order was set aside on payment of costs and they were asked to present their written statement. They availed four opportunities but , on their failure to present their written statement, the trial Judge proceeded by pronouncing judgment against them. It is noticed that there were more than five defendants. This is how the suit was adjourned for framing of issues with respect to the case against defendants Nos.6, 7 and 8. This is how the learned District Judge disagreed with the learned Sub-Judge as in his view, the suit was still at early stage of framing of issues. In the circumstances, instead of pronouncing judgment against defendants Nos.1 to 5, the Sub-Judge should have given more opportunity to them for filing their written statement.
8. In order to record a final conclusion, the leading facts of the case are to be kept in mind. The plaintiff brought a suit for specific performance of agreement. It was averred that defendants Nos.2 to 5, owners of the suit land, made an oral agreement with the plaintiff whereby they agreed to sell the land to him in consideration of the price in the sum of Rs,41,423. By collusion, defendant No,1 brought a suit against defendants Nos.2 to 5 before the same Court where they admitted the claim of defendant No,1. The plaintiff in the present case was also arrayed as one of the defendants. He contested the claim of defendant No,1 in the counter suit. The counter suit was still in progress when the present suit was instituted. The aforesaid facts lead to the conclusion that the alleged claim of the plaintiff was sought to be supported by oral evidence. The oral evidence was still to be recorded. At the relevant stage when the judgment was pronounced, the trial Judge was not in possession of any other material except the pleadings of the plaintiff and judgments of the Courts referred in such pleadings. The aforesaid judgments appended with the pleadings, admittedly, were not supportive of the alleged agreement to sell the suit land. In the circumstances, it has to be accepted that the judgment was pronounced against the defendants in absence of any supportive evidence. The decision, in my view, was not a valid one. For the judgment could be pronounced against the defendants only on the basis of some tangible evidence lending support to the claim of the plaintiff. To hold otherwise, was likely to lead to disastrous results, by collusive and fictitious litigation.
9. The defendants-respondents against whom judgment was pronounced have failed to assign any sufficient cause justifying their failure to present their written statement before the Sub-Judge despite availing various opportunities given to them. Agha Ashiq Hussain, the learned counsel for the defendants-respondents frankly agreed that no convincing or satisfactory explanation was available to condone the negligence of the defendants. In the circumstances, the defendants cannot claim, as a matter of right, to present written statement even on payment of the costs. They are, obviously deprived of their defence.
10. The order of Sub-Judge is, therefore, not sustained. However, the order of District Judge is equally modified. Defendants cannot at this stage present their written statement even on payment of costs. The suit shall have to be proceeded in the light of the aforesaid observation.
11. Agha Ashiq Hussain, the learned counsel for the respondents, invited my attention to the decision of this Court recorded in Raja Dil Muhammad's case, wherein objection on the jurisdiction was sustained on the plea that the suit for specific performance of agreement was to be triable by the Court which had pecuniary jurisdiction up to the amount of subject of dispute In that case, the plot in question was sold for Rs,45,000. The plaintiff brought a suit for declaration and specific performance of agreement. It was held that the suit was primarily in the nature of specific performance of agreement and value of the suit for jurisdiction of the Court and payment of court- fee was to be determined in the light of the price of the plot shown in the alleged agreement between the parties.
' It is not considered advisable to express any opinion on the objection of jurisdiction. For an expression of opinion by this Court in either way was likely to deprive the lower Court of its jurisdiction to decide the point. However, I leave this point for the decision of the learned Sub- Judge.
' In view of the aforesaid findings, the appeal partly succeeds. The order of Sub-Judge is set aside.
The order of District Judge is partly modified and the case is remanded to the Sub-Judge for its disposal accordingly. No order as to costs.