1. Briefly stated the facts of the case out of which this civil revision has arisen are that the respondent filed a suit for recovery of damages for Rs.25,000 against the petitioner on the basis of allegation that they were involved in a false criminal case by the petitioner under section 506/427/148/149, P.P.C. wherein they were acquitted on 30-10-1988 under the provisions of section 249-A Cr.P.C. by the learned Ilaqa Magistrate, Gujrat and, therefore, on account of malicious prosecution the plaintiffs claimed that they are entitled to the payment of Rs.25,000 as damages. The suit was filed on 29-3-1989 and notices were issued to the defendant-petitioner for 12-4-1989 for which date the petitioner was not served: Consequently, the case was again adjourned for 26-4.1989 due to the non-service of the petitioner and ultimately the petitioner was served for 24-3-1990 after issuance of process on many dates in an ordinary manner through registered envelope and through citation. The petitioner himself did not appear in the Court on 25-3-1990 but his learned counsel appeared and sought an adjournment to file his power of attorney as well as written statement which was allowed to be filed on 2-4-1990. On that date also the petitioner was present in person.
2. He did not file the written statement and next date for filing of written, statement was fixed for 8-4- 1990 on which date he also appeared in person' but did not file his written statement and had requested for an adjournment, On his request, an opportunity was granted to him to file the written statement on 16-4-1990. This opportunity was granted to him on the payment of Rs.25 as costs. On 16-4-1990, the petitioner appeared in person and paid costs but did not file his written statement and requested for grant of more time. Consequently, the case was adjourned to 5-5-1990 for filing of the written statement by the petitioner. It was specifically directed that further opportunity shall not be granted. On 5-5-1990 the power of attorney was submitted on behalf of the petitioner and another opportunity was asked for filing of the written statement, which was granted and the case was adjourned to 15-5-1990 for filing of the written statement by the petitioner. On 15-5-1990 the case was transferred to another Court and it was taken up by the transferee Court wherein it was stated that the learned counsel for the petitioner was busy in Azad Kashmir election and, therefore, an opportunity was requested for filing of the written statement. Learned Civil Judge adjourned the case to 6-6-1990 for filing of the written statement. On 6-6-1990 learned counsel for the petitioner appeared but stated that as the petitioner has not come to the Court, therefore, he should be waited for. Consequently, the case was kept in waiting but even thereafter the petitioner did not turn up neither any written statement was filed on his , behalf. Learned counsel for the petitioner also could not explain any reason as to why the petitioner has not appeared in Court and as to why written statement has not been filed. Learned Civil Judge under Order 8, rule 10, C.P.C. struck off the defence of the defendant-petitioner and passed a decree in favour of the respondents for payment of Rs.25,000 by way of damages. This judgment and decree passed by the learned trial Court was challenged by the petitioner in appeal which has been dismissed by the learned Additional District Judge, Gujrat vide judgment and decree dated 25-5-1992. In this civil revision both the judgments and decrees have been challenged by the defendant-petitioner. This case was admitted to regular hearing vide order dated 1-9-1992 and the execution proceedings were also stayed subject to the furnishing of security by the petitioner within a fortnight. Today, Dr. Shoukat Hussain, Advocate has appeared on behalf of the petitioner and Mr. Fayyaz Ahmad Sherazi, Advocate has appeared on behalf of the respondents. Learned counsel for the petitioner had admitted that the petitioner has failed to furnish the security as per- order passed by this Court dated 1-9-1992 in spite of the fact that a letter has been written to him by the learned counsel for the petitioner. He has not cared either to contact the learned counsel or to explain the reasons as to why he having obtained concession from this Court in exercise of its discretionary jurisdiction has failed to comply with his obligations. The petitioner is not present in person today.
3. Learned counsel for the petitioner has argued that as the date fixed in the case was for filing of usual written statement, the defence of the petitioner could not have been struck off under the provisions of Order 8, rule 10 of the C.P.C. which according to the learned counsel applies only to those cases wherein additional written statement is directed to be filed under orders of the Court.
4. Learned counsel for the petitioner further contends that without recording of evidence suit could not have been decreed on the date which according to the learned counsel was not a date of hearing.
5. As against the above are arguments addressed by the learned counsel for the petitioner, learned counsel for the respondents has argued that lot many dates were fixed by the learned trial Court for filing of the written statement by the petitioner but he failed to file the written statement and, therefore, the provisions of Order 8, rule 9, C.P.C. stood applied in case of failure to file the written statement. Learned trial Court was justified in striking off the defence of the petitioner and to pass a decree in favour of the respondent without recording of evidence. In support of his contention learned counsel has relied upon the cases of Abdul Rahman v. Ghulam Nabi (1987 SCM R 1656), Fazal Ellahi and 5 others v. Alam Din (PLD 1979 SC (AJ&K) 109), Ghulam Nabi v. Messrs Lufthansa German Airlines, Lahore (1982. CLC 387) and Sh. Abdul Malik v. Sh. Mehboobur Rehman (1988 CLC 56). Mst. Hakumat Bibi v. Imam Din and others (PLD 1987 SC 22).
3. I have considered the arguments addressed by the learned counsel for the parties and have perused the record. As narrated above, many dates were given to the petitioner to file his written statement but he failed to file the written statement in spite of the fact that on one date he was burdened with payment of costs. Some dates were fixed in routine whereas the others were given to him on his own request. Consequently, the order passed by the learned trial Court directing the filing of themritten statement fell within the provisions of Order VIII, Rule 9, C.P.C. and as such non- compliance thereof could have resulted in exercise of the powers under Order VIII, Rule 10, C.P.C. which power has been exercised by the learned trial Court in this case. It was also not necessary to record evidence in the case as the facts are almost admitted that the respondents were prosecuted in a criminal case and were acquitted by the Ilaqa Magistrate on an application under section 249-A, Cr.P.C. In view of the above no fault can be found with passing of the decree without recording of evidence. This view is also supported by the dictum laid down by their Lordships of the Supreme Court of Pakistan in the judgment relied upon by the respondent's counsel. Even otherwise revisional jurisdiction is of discretionary nature. The petitioner has obtained and enjoyed the stay order issued by this Court but has failed to furnish the security in terms of the order g passed by this Court. He has not cared to prosecute this civil revision and even his learned counsel. is feeling great difficulty in arguing this civil revision particularly in answering the objections raised by the learned counsel for the respondents that the petitioner having obtained a stay order from this Court has intentionally failed to comply with the conditions of the said order and as such discretionary jurisdiction should not be exercised in his favour.
6. Resultantly, I see no ground to interfere with the judgments and decrees passed by the two lower Courts. The civil revision is, therefore, dismissed. The parties shall bear their own costs.