MIAN ALLAH NAWAZ, J. -- This petition, under Section 115 of Civil Procedure Code by Superior Textile Mills Ltd. Defendant, seeks to call in question the orders dated 15.6.1998, 22.7.1998 and 24.9.1998 passed by Civil Judge, Lahore.
2. The facts, in brief, are that M/s. Lzhar Private Ltd. Company/respondent brought a suit on 27.1.1997 for recovery of 1,57,185.50 rupees against Superior Textile Mills/petitioner alongwith a mark-up of 20% per annum from the date of institution of the suit till realization of decretal amount. The petitioner entered appearance before Court and moved an application on 15.6.1998 for production of documents referred to in the list furnished under Order XIII, rule 1, CPC. This application was contested and was rejected on 15.6.1998. The petitioner was required to file written statement on 29.6.1998. On that date of hearing, written statement was not filed and so hearing of the case was postponed to 22.7.1998. Since the petitioner did not comply-with the order of the Court, his defence was struck off and case was put to 8.9.1998 for evidence of the respondents. The petitioner filed a review application against the order dated 22.7.1998 and the same was also dismissed. This is how this revision petition has come to this Court.
3. The learned counsel for petitioner relied upon Abdul Saboor & Brothers Vs. Flour Mills Ltd. (PLD 1967 Lah. 779) to contend that he was prepared to pay compensatory cost if one opportunity was given to him for filing written statement; that the order of the Court below was harsh and it completely deprived the petitioner from defending the suit; that the suit involved a huge money and it was in the interest of justice that opportunity must have been given to petitioner to file written statement. The learned counsel for the other side, however, supported the impugned order.
4. I have heard the learned counsel for parties at length, attended to their competing contentions and found substance in the case of the petitioner. No doubt, whenever the defendant/defendants fail/fails to file the written statement in consonance with the order of the Court, the Court has two alternatives; Firstly, it may proceed to pronounce the judgment against such defendants or may make such order in relations to suit as it thinks fit. It is also true that action under Order 8, rule 10 is penal in nature and should be taken according to the ground realities of the case. Normally, the Court leans in favour of adjudication on merits and disfavour ex parte decisions. In Abdul Saboor's case, supra, it was held that:- "In the present case, the suit was for the recovery of Rs.1,41;773.70. The defendant appeared before the Court on the 13th of September, 1965. He came from Lahore. It was at a time when Pakistan and its people were busy defending themselves against the armed aggression by Bharat. The fact that the defendant appeared in Court, shows that he really wanted to contest the suit. The Court adjourned the case to the 5th of October, 1965, requiring him to file the written statement. It was the first opportunity given to the defendant-appellant to fife the written statement. The defendant was present in the Court. This again would show that he did not let the case go against him by default.
He. Sought an adjournment but it was refused. On adjournment to him on, certain conditions would have met the ends of justice because the relief claimed against the appellant involved an enormous amount. The Court could have granted him an adjournment on payment of costs. In my opinion, the Court has not exercised its discretion under rule 10 of Order VIII properly and has also not acted justly in, refusing an adjournment under rule 1 of Order VIII of the Code of Civil Procedure."
5. Guided by the above rule, I find that the suit filed by respondent involved a claim of more than one crore rupees and raised serious questions of law and fact that the petitioner was prepared to pay compensatory cost to the other side for seeking opportunity to file the written statement. In the context of the above circumstances, it was more one opportunity ought to have been granted to the petitioner for filing written statement. In view of the above conclusion, this revision petition succeeds. Order passed by the learned Senior Civil Judge dated 22.7.1998 is hereby set aside. The petitioner shall file written statement before Ist Court on or before 3.7.1999. This order shall be subject to condition that petitioner shall pay an amount of Rs. 15,000/- was compensatory cost to other side on or before next date of hearing in Court. In case of default, the order of the learned Senior Civil Judge dated 22.7.1998 shall stand restored and occupy the field. This petition so stands disposed of in the above terms.