M. HUSSAIN ADIL KHATRI, J.- The petitioner on 25.7.1984 had filed suit No. 4895/85 for recovery of Rs.16,800/- against respondents No. 1 &2 before the Senior Civil Judge Karachi. After service of summons the said respondents filed application under Order 7 rule 11 C.P.C which was allowed but on the appeal preferred by the petitioner the order of rejection of the plaint was set aside and the case was remanded for disposed on merits. Ob 28.10.1985 the petitioner filed an application under Order 8 rule 10 C.P.C praying that the judgment be pronounced against the said respondents as they had failed to file written 10.4.1986 accepted the written statement already filed by the said respondents and dismissed the aforesaid application of the petitioner.
2. The petitioner challenged the said order by Civil Revision No.24/86 which was dismissed by the learned IVth Additional District Judge Karachi South by his order dated 2.7.1986. The learned counsel has challenged the said order in this petition.
3. The learned counsel has contended that respondents No.1 & 2 did not file the written statement for more than 17 months and as such the Civil Judge had no jurisdiction to accept the same and ought to have pronounced the judgment against the said respondents. He has placed reliance on the case of Muhammad Hanif and 2 others Vs. Abdul Latif and 2 others (1987 C.L.C 2393), Mst.
Sarwat Kazmi Vs. State Life Insurance Corporation (1980 C.L.C 1779) and Ghulam Nabi Lone Vs. Messrs Lufthansa German Airlines, Lahore (1982 C.L.C 387).
4. The first two cases cited by the learned counsel are not applicable to' the present case. In the said cases written statement was not filed at all and consequently the judgment was pronounced under Order 8 rule 10 C.P.C. So far as the third case is concerned the defendant had failed to file the written statement and when the matter came up before the Court, no application was filed showing good cause for not filing the written statement within the time allowed by the court. The execuse advanced was that the learned counsel had advised the defendant to settle the matter out of court and therefore the written statement was not filed, lest the defendant may advise him (advocate) to continue with the suit. It was under these specific circumstances that the judgment was pronounced under Order 8 rule 10 C.P.C. So far as the present case is concerned the facts are distinguishable. Respondents No.1 & 2 had filed application under Order 7 rule 11 CPC which was successful. It was only on appeal that the matter was remanded for disposal on merits. The learned counsel of the petitioner had not placed necessary particulars like the date when the application under Order 7 rule 11 CPC was filed and decided and the date when the appeal was decided. He has not even placed any record before us to show that the said respondents were directed by the Court to file written statement during the pendency of the said application.
No doubt Order VHI Rule 1 provides that the defendant shall, at or before the first hearing or within such time as the court may permit, present a written statement of his defence and it is further provided that the period allowed for filing the written statement shall not ordinarily exceed ninty days.
5. It is matter of discretion vested in the court to grant time even after expiry of ninty days. In case the defendant fails to file the written statement within the time fixed by the court, it may pass order as provided u/o VHI Rule 10 C.P.C. In the instant case the Court in exercise of its discretion had accepted the written statement filed by the said respondents in view of the circumstances of the case and dismissed the application under Order VHI rule 10 C.P.C.
At the time of hearing of this petition the learned counsel on query by us informed that the evidence of the parties had been recorded and the suit is fixed for final arguments. Since the proceedings in the suit are about to conclude, it will not be proper to interfere in the proceedings of the trial Court, in exercise of the Constitution discretionary jurisdiction.
The above are the reasons for the short order of dismissal of petition passed by us on 20.3.1991.