' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the order of the High Court dated 28-11-1996, whereby the revision petition filed by the petitioners, herein, was dismissed.
2. The brief facts of the case are that Muhammad Akbar, respondent, filed a suit for declaration and perpetual injunction against the defendants-appellants in the Court of Sub-Judge, Bagh.
Summons were issued to the defendants-respondents and they were directed to file written statement on 10-7-1995 but the written statement was not filed and the case was adjourned for filing the written statement to 15-10-1995 again the order of the trial Court was not complied with and the trial Court closed the right of defence of the defendants-appellants. However, on the same day, the counsel for the defendants-appellants filed an application stating that he was busy in some other Court and, thus, could not file the written statement earlier. It was prayed that the written statement was complete and may be placed on the file. The trial Court rejected the application observing that as the right of defence of the defendants had already been put to an end, the same could not be placed on the record. A revision petition was filed to the High Court but the same was also dismissed.
3. We have heard the arguments and perused the file. It has been contended by Sardar Muhammd Yasin Khan, Advocate, the learned counsel for the defendants-appellants, that the trial Court has committed an error in observing that the impugned order could not be changed by it. The learned counsel has argued that under rule 7 of Order IX, C.P.C., such an order could be set aside if the concerned party or his counsel 'assigns a good cause for his previous non-appearance'. Thus, the learned counsel contended that the view taken by the Court that the impugned order could not be interfered with was not correct. He has further submitted that even if a party is not permitted to the written statement, such party can join the proceedings against him at any stage. The learned counsel has further argued that the phraseology employed in rule 7 of Order IX, clearly shows that its provisions should not be strictly construed. The learned counsel has referred to a case reported as Superintending Engineer, Electricity, Mirpur v. Kashmir Steel Mills, Mirpur (PLD 1992 Azad J & K 7) in support of his contentions wherein it has been held that the defendant who had failed to file a written statement as was directed by the Court, could join the proceedings on a subsequent date of hearing. The learned counsel has further argued that the High Court has also failed to apply the mind to the legal proposition involved in the case. The learned counsel has drawn our attention to the fact that the High Court in the order passed in revision has observed that the 'Court was constrained to dismiss the suit', whereas in the present case, the question of dismissal of suit did not arise rather the defence of the defendants-appellants was closed.
4. Mr. M. Tabassum Aftab Alvi, Advocate, learned counsel for the respondent, has controverted the arguments advanced by the learned counsel for the appellants. He has argued that the impugned order of the trial Court dated 10-12-1995 shows that the counsel for the defendants-appellants was present and, thus, his subsequent application on the same day that he could not appear in the Court due to his engagements in some other Court was not correct. He has further argued that the impugned order was rightly passed and does not suffer from any legal infirmity. The learned counsel has cited following authorities in support of his contentions: ' In case reported as Haji Muhammad Yaqoob v. Auqaf Department (1997 MLD 2348), the order of the High Court giving further opportunity to the Auqaf Department for filing objections was set aside on the ground that the perusal of interim orders shows that various opportunities were given to the department for filing objections but it failed to do the needful, despite the fact that it was also given an opportunity on the payment of costs.
' In case reported as Ghulam Muhammad v. Mst. Irshad Begum (PLD 1964 Lahore 782), the judgment was announced against the defendant under Order VIII, rule 10 for his failure to file written statement: ' The learned counsel for the respondent has further submitted that the mere fact that the observations of the High Court can be interpreted to mean that the matter pertained to the dismissal of the suit would not justify to set at naught, the impugned order of the trial Court.
5. We have given our due consideration to the arguments raised at the Bar. For convenience, rule 7 of Order IX, C.P.C., is reproduced below:-- "7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.---Where the Court has adjourned the hearing of the suit ex parte, and the defendant at or before such hearing, appears and assigns good cause for his previous non- appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."
It is evident from the above rule that if the defendant appears and assigns a good cause for his previous non-appearance, the Court may give him an opportunity of hearing in answer to the suit as if he had appeared on the date fixed for his appearance. It may be pointed out here that in Order IX, rule 13, which pertains to setting aside an ex parte decree or a final order, the phraseology is altogether different from the one employed in rule 7 of Order IX, C.P.C. For setting aside an ex pane decree or order under Order IX, rule 13, the Court has to satisfy itself that a sufficient cause existed for the nonappearance of the concerned defendant but for setting aside an order under rule 7, Order IX, only a 'good cause' is to be 'assigned'. Obviously, the intention of the Legislature is that until and unless it is shown that the conduct of the defendant is grossly negligent, the strict construction of the aforesaid rue should be avoided. A reference may be made to the following cases in support of the view:-- ' In case reported as Manzoor Ahmad Bhatti v. Road Transport Corporation, West Pakistan (PLD 1973 Lahore 659) it has been held that in a case falling under rule 7, Order IX. C.P.C., the provision should be liberally construed in favour of a defendant because the rule of procedure as laid down in C.P.C.
Are principally intended for advancing justice and not for retarding it on pure technicalities.
' In case reported as Ghulam Muhammad v. Mst. Irshad Begum (PLD 1964 Lahore 782), it was observed that where a defendant is proceeded ex parte, he is not debarred from appearing subsequently in the Court and participating in the proceedings at a subsequent stage.
6. It may be stated that while passing the impugned order, the Trial Court assumed that as it had already passed the impugned order, it was not legally competent to give further opportunity to the defendants. The trial Court dismissed the application of the counsel for the defendants observing that the written statement cannot be accepted because order had already been passed.
Obviously, the impression of the trial Court in the matter was contrary to the provisions contained in rule 7 of Order IX, C.P.C. While dismissing the application for placing the written statement on record, the trial Court did not observe that the counsel for the defendants was present when the impugned order was passed and that he wrongly stated in his application that he was busy in some other Court. This shows that the presence of the counsel for the defendants was entered in the interim order casually. Similarly, the learned Judge in the High Court also did not consider the provisions contained in rule 7 of Order IX and went on to observe that as the order of the Court was not complied with, the impugned order suffered with no legal infirmity. The aforesaid observations of the High Court are indicative of the fact that the real proposition involved in the case was not adverted to, i,e,, as to whether in the circumstances of the case, the defendants-appellants should have been provided a further opportunity to file the written statement or not.
' After giving due consideration to the matter, we are of the view that the fact that the counsel for the defendants appeared on 10-12-1995, and submitted an application for placing the written statement on the file justifies indulgence in his favour. It has not been held by the trial Court while dismissing the application of the counsel for the defendants that he was present when the impugned order was passed and that he wrongly mentioned in his application that he was busy in some other Court. The authorities cited by the learned counsel for the respondent have no application to the facts of the case in hand. In case reported as Haji Muhammad Yagoob v. Auqaf Department (1996 PSC 1564), referred to above, the Court came to the conclusion that sumerous opportunities were provided to the defendant but written statement was not filed. Thus, in the circumstances of that case it was observed that the order passed by the trial Court did not suffer from any legal infirmity. Similarly, the other authority, referred to above, pertains to passing of the judgment in case the defendant failed to file a written statement, whereas in the instant case, no decree was passed in favour of the plaintiff nor it could be done in the circumstances of the case in hand.
Thus, we accept the appeal, set aside the impugned order of the Trial Court and that of the High Court. It is directed that the trial Court shall give one more opportunity to the defendants to file written statement and thereafter, proceed with the trial of the suit according to law.