1. ' This suit has been filed by the Plaintiff under Order XXXVII, rules 1 & 2, C.P.C. For recovery of Rs,6,00,000 (rupees six lakhs).
2. ' The case of the Plaintiff is that he had paid a sum of Rs,6,00,000 to the Defendant at his request and obtained a Promissory Note from the Defendant and also a receipt for the amount mentioned in the Promissory Note. The photostat copies of the Promissory Note and the receipt which both are dated 23-1-1988 are annexed with the plaint as Annexures A/1 & A/2. The Defendant had moved an application under Order XXXVII, Rule 3, C.P.C. For' leave to defend the suit, which application was allowed by order passed on 10th March, 1991 whereby the leave to defend was granted and it was further ordered that the Defendant shall be permitted to file written statement within a period of four weeks. The Defendant did not file such written statement and the case was fixed in Court for further orders on 5-5-1991 when at the request of the Defendant, a further time of two weeks was allowed with the condition that if the Defendant failed to file written statement within two weeks, his defence shall be struck off. In consequence of the above order, an order was passed by the Additional Registrar on 22-5-1991, whereby the matter was ordered to be fixed for final disposal.
3. Accordingly, the matter has now been fixed for final disposal.
4. ' Mr. Usman Ghani Rashid, the learned counsel appearing for the Defendant has pointed out that the Defendant has filed the written statement on 1st August, 1991 i.e. Much after the expiry of the time allowed to the Defendant to file written statement. No application for permission of the Court to file the written statement or for setting aside the orders as mentioned above has been moved.
5. Mt. Usman Ghani Rashid, the learned counsel for the Defendant has submitted that since the Defendant was permitted to file the written statement; and that he has already filed the written statement, no order passing the decree against the Plaintiff can be made under Order VIII, Rule 10, C.P.C. He has placed reliance on the case of Sardar Sukhawatuddin v. Muhammad Iqbal 1987 SCM R 1365 ' As against this, Mr. Hassan Jafri, the learned counsel for the Plaintiff has submitted that the written statement filed by the Defendant is out of time and cannot he taken on record. He has further submitted that in such circumstances, the case may be treated as if no written statement has been filed by the Defendant and thus a decree is to be passed straightaway against the Defendant. He has placed reliance on the case of Hakumat Bibi v. Lmamuddin and others PLD 1987 SC 22.
6. ' I have considered the submissions of the learned counsel for the parties. It may be pointed out that in a case of similar nature, the above-cited case-law was considered and followed in the case reported in Hassan Aqdas v. Mir Muhammad 1990 CLC 1362, ' In the case of Sardar Sakhawatuddin v. Muhammad Iqbal, their Lordships in the Supreme Court have observed that there are three types of written statement that can be filed tinder the provisions of Order VIII of the Code of Civil Procedure which are as under;
(i) As of right without any formal permission of the Court (Rule 1).
(ii) When it is so required by the Court to file a written statement (Rule 1 and Rule 9).
(iii) When under some circumstances it is by the leave of the Court (Rule 9).
7. ' Dealing with this position their Lordships have further observed as under; "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.
8. ' As it is a penal provision it will have to be strictly construed. Hence wherever 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. See Industrial Sales and Service, Karachi and another v. Archifar Opal Laboratories Ltd., Karachi PLD 1969 Kar 418."
9. ' In the above-cited case of Hassan Aqdas v. Mir Muhammad, following the principles laid down by the Hon'ble Supreme Court, it was held; "that no penalty is to be imposed for not filing the written statement as required under item Nos.1 and 3 above but the penal consequences can be imposed where the written statement is not submitted as provided under item No,2 above which means that when the defendant is so required to file the written statement and he does not do so, then the penal clause under Order VIII, rule 10, C.P.C. Is to be imposed and the trial Judge has the discretion either to pass the judgment straightaway or to pass any other order in relation to the suit as he thinks fit. In this case their Lordships were further pleased to observe that the first part of the Rule 10 being a penal provision, the same should be strictly construed and the matter being in discretion of the Court the penalty should not be imposed if the judgment could not be pronounced being prohibited by law expressly or impliedly but in such circumstances recourse should be had to the second part of the provision of Rule 10 of Order VIII, C.P.C. In view of above discussion I am clear in my mind that the Court exercising jurisdiction under penal clause of Order VIII rule 10, C.P.C. Has not simply to pronounce the judgment decreeing the suit but has to exercise the caution and care to see as to whether on the showing of the Plaintiff such decree could be passed in law and that there is no express or implied legal bar against passing such decree."
10. Thus it may be observed that in the present case the second part of Order VIII, rule 10 of Civil Procedure Code can be applied and other suitable ''orders can be passed. In the present case the receipt for Rs,6,00,000 is signed by the Plaintiff showing his address as Messrs Ali International, 502- A, 5th Floor, Panorama Centre Building No,2, Saddar, Karachi. This fact obviously' lends support to the Defendant's contention as stated in his application under Order XXXVII, rule 3, C.P.C. And the affidavit filed in support thereof that this amount was received by the Defendant for investment in the Company Messrs Ali International Limited and not for Defendant's own use. The Plaintiff has not produced any evidence or the documents to rebut this contention of the Defendant. It is also an admitted position that the said Company Messrs All International has gone into liquidation. In these circumstances, it will be open for the plaintiff to lodge his claim with the Official Liquidator.
11. ' From the above discussion, I am of the view that the present suit as it is, cannot be maintained, which is accordingly dismissed with no order as to costs.