' SAJJAD ALI SHAH, C J.---Petitioner before us is defendant in Suit No,213/92, which was filed for recovery of money by the respondent. Petitioner appeared in the trial Court on 22-11-1992 alongwith his advocate and got his statement recorded to the effect that he admitted his signatures on the photo copies of pronote and also produced photo copy of his National Identity Card. The statement was signed by him. The case was adjourned to 28-11-1992 for filing of written statement and till then it was ordered that property of the defendant would remain attached. On the next date of hearing written statement was not filed and counsel of the defendant/petitioner requested for adjournment which was granted and the case was adjourned to 12-12-1992 on the cost of Rs,50 with condition that no further adjournment would be granted. On the next date counsel for defendant/petitioner appeared but written statement was not filed, hence the suit was decreed as contemplated under Order VIII, Rule 10, C.P.C. Against the judgment and decree, petitioner filed appeal in the High Court which is dismissed, hence this petition for. Leave to appeal.
2. It is submitted before us on befalf of the petitioner that the suit should not have been decreed on the ground that the written statement was not filed as it was a fit case in which evidence should have been recorded. This contention is untenable for the reason that Order VIII, Rule 10, C.P.C.
Empowers the Court to pronounce the judgment when the party from whom written statement is so required, fails to present the same within the time fixed by the Court. In the instant case the petitioners appeared in the Court alongwith his advocate and admitted his signatures on the pronote. Time was given for filing the written statement which was not filed on the next date and adjournment was sought which was granted subject to the payment of cost of Rs,50 and it was made clear that no further adjournment would be granted. In spite of that on the next date of hearing again written statement was not filed, hence the judgment was announced as permitted by the law.
3. It is submitted that the petitioner was shown photostat copies of the pronote but not original and although he admitted his signatures, his defence is that signatures were obtained fraudulently. This contention is not sustainable for the reason that copy of the order-sheet dated 22-11-1992 on the record clearly shows that the petitioner in the presence of his counsel admitted his signatures on photo copies of pronote and did not demand production of the original. He only stated in his statement that signatures on the photo copies of the pronote were his. He produced photo copy of his National Identity Card. He did not plead fraud. Had he done so, such assertion would have appeared in his statement including objection with regard to the non-production of original pronote. It also appears that such statement was made by the petitioner under legal advice and subsequently he changed his mind. Had he pleaded fraud at the time of admission of his signatures then such plea would have surfaced in his statement and also his advocate would have filed affidavit in support of that version.
4. In any case on the next date i,e, 28-11-1992 counsel for the petitioner defendant appeared in the trial Court but the written statement was not filed in the Court and the case was adjourned on request subject to the payment of cost. No protest was made that on the last date of hearing original pronote was not produced. Plea of fraud was also not taken. Adjournment was granted on cost with condition that no further adjournment would be granted for filing of written statement. On 12-12-1992 also written statement was not filed. Order-sheet of three dates mentioned above clearly shows that time was being sought to file written statement, which was not filed and since it was made known to the petitioner that no further adjournment would be granted to file written statement and even then on the next date written statement was not filed so the trial Court was justified legally to announce the judgment as is permitted under Order VIII, Rule 10, C.P.C.
5. So far as case-law on the subject is concerned, reference can be made to the case of Hakumat Bibi v. Imam Din and others PLD 1987 SC 22, which is the decision of Full Bench of this Court comprising four learned Judges and it is held therein that under Order VIII, Rule 10, C.P.C. Court has discretionary power to pronounce judgment if defendant, so required to file written statement, fails to do so and if such discretion is exercised after consideration of all the facts and circumstances then such judgment pronounced would be valid and a legal though passed without recording any evidence whatsoever. As per facts of the reported case, one of the defendants did not admit the claim of the plaintiff and her counsel appeared in the Court and filed Vakalatnama on her behalf and other defendants also. Later she engaged advocate separately who appeared on her behalf and sought adjournment to file written statements for which an undertaking was given but such written statement was not filed. The trial Court decreed the suit under Order VIII, Rule 10, C.P.C.
Observing that the plaint had been verified on oath against which no written statement was filed controverting the allegations. The suit was decreed without recording of evidence. Incidentally in the reported case time was sought to file the written statement which was granted but the written statement was not filed and further time was sought which was granted on payment of cost but even on the next date written statement was not filed and the judgment was announced. In the instant case time was extended to file written statement on the payment of cost and it was made clear in the order that no further time would be allowed for filing the written statement. In the reported case appeal was dismissed and pronouncement of judgment under Order VIII, Rule 10, C.P.C. Was upheld on the ground that discretion had been exercised judiciously, hence the judgment pronounced was valid and legal though without recording any evidence. The reported case is on all fours with facts of the instant case and it can be said that the instant case stands on better footing for the reason that second adjournment was granted for filing of written statement on payment of cost and it was made clear that no further adjournment would be granted for that purpose.
6. In the case of Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCM R 1365, a Bench of this Court comprising four learned Judges examined in detail Rules 1, 9 and 10 of Order VIII, C.P.C. And considered penal consequences flowing therefrom on account of not filing the written statement. It was held that whenever a written statement is to be made subject of penal Rule 10, there should be proof on the record that the Court had "required" it by application of mind to the need and that too in a speaking order. In that case incidentally judgment in the case of Hakumat Bibi supra, which was announced earlier in point of time i,e, 12-11-1986, was not noticed. In any case there is no deviation and ratio in the judgment of Sakhawatuddin (supra) does not run counter to that of Hakumat Bibi but in fact is improvement to the extent that such order is to be passed by application of mind and is to be speaking order.
7. In the case of The Secretary, Board of Revenue, Punjab, Lahore and another v. Kahlid Ahmad Khan 1991 SCMR 2527 emphasis was placed on the words "so required" used in Order VIII, Rule 10, C.P.C.
And following the guidelines laid down in the judgment of Sakhawatuddin (supra), judgment without recording evidence was set aside on the ground that there was lack of requirement from the Court and order was not speaking. It was held that when written statement is made subject to Rule 10, there should be proof on the record that Court had "required" it by application of mind and too in speaking order. It would be pertinent to mention that in that case it was admitted before this Court that "requirements" were not fulfilled. In the case of Sheikh Abdul Hamid v. Khurshid Ahmad 1993 SCM R 1071 leave granted earlier was withdrawn for the reason that even otherwise defendants could not non-suit plaintiff in a suit of pre-emption as the repealed Punjab Pre-emption Act, 1913 held the field and admittedly plaintiff had superior right of pre-emption.
8. We have examined in depth the facts of the instant case in the light of case-law on the subject mentioned above and have come to conclusion that no exception could be taken to the decreeing of suit without recording evidence in consequence of non-filing of written statement for which specifically time was given and extended on payment of cost making it pointedly clear to the defendant that no further time would be allowed for that purpose. The order is speaking and has been passed with judicial application of mind, when viewed in the background that defendant had appeared alongwith his counsel and admitted his signatures on the photo copies of the pronote and filed such statement without any protest and without pleading fraud. In fact after admitting signatures on the pronote there was nothing left for filing of written statement and by way of afterthought fraud is pleaded when suit has been decreed without recording of evidence. For the facts and reasons mentioned above, leave is refused and this petition is dismissed as being without merits.