MALIK- MUHAMMAD QAYYUM, J.---This is a defendant's appeal against judgment and decree dated 7-5-1999 passed by a Civil Judge at Lahore whereby he decreed the suit of the respondent for specific performance and recovery of Rs,60 billion as damages.
2. In view of the nature of the controversy before this Court it is not essential to recapitulate the facts leading to the filing of the suit. It is enough to state that in the suit filed by the respondent they had alleged that the parties had entered into a contract which was not performed by the appellant and the respondent was entitled to recover damages and also a decree for specific performance.
3. The plaint was presented to the learned Civil Judge on 7-9-1998 who issued the summons to the respondents for 10-10-1998. On that date the learned counsel for the parties appeared and counsel for the appellant presented his memorandum of appearance. The case was adjourned to 27-11- 1998 for filing power of attorney and further proceedings. On 27-11-1998 the case was adjourned to 23-12-1998 at the request of the learned counsel for the defendant-appellant for filing written 'statement. On the next date of hearing namely 23-1-1999 reply to an application moved by the respondent under Order VIII, rule 10, Code of Civil Procedure was submitted. The Court observed that defendant No,2 had not been served and that fresh notices be issued to it. Thereafter, no significant proceedings appear to have been taken by the Civil Judge. Ultimately on 7-5-1999 the learned Civil Judge came to the conclusion that the appellant had purposely not filed the written statement and as such their defence was liable to be struck off under Order VIII, rule 10, Code of Civil Procedure. Consequently the suit of the respondent for recovery of Rs,60 billion and for specific performance,
4. Mr. Fakhr-ud-Din G. Ebrahim learned counsel for the appellant has argued with vehemence that order of the Civil Judge striking off the defence of the appellant on the face of it was fallacious and that the appellant was not given proper opportunity to file the written statement. It was further emphasised that Order VIII, rule 10, Civil Procedure Code only applies where the defendant is required by the Court under rule 9 of Order VIII to file the written statement and he fails to do so and not to the written statements filed by the parties with permission of the Court. In the last it was submitted that the provisions of Order VIII, rule 10 are penal in nature and should be sparingly applied when the conduct of a defendant is contumacious and it is not possible to proceed with the suit. It was further argued that in any event it was not a case which could be decreed by the Court due to non-filing of written statement simpliciter but the Court should have recorded evidence before awarding any damages to the respondent.
5. Learned counsel appearing on behalf of the respondent has supported the order passed by the learned Civil Judge by arguing that the appellant had failed to file the written statement on 8/9 occasions and as such the order was perfectly in accordance with law and fully justified.
6. After hearing the learned counsel for the parties and perusing the available record it has become clear to us that the impugned judgment and decree is not sustainable. In the impugned order it was observed by the Civil Judge that 879 opportunities had been given to the appellants for filing the written statement but they have failed to do so. These observations are contrary to record which shows that only at one occasion i,e, 23-12-1998 the suit was adjourned at the request of the appellants to file the written statement. On all other dates of hearing there were miscellaneous applications pending before the Court which were to be disposed of.
7. At this stage it may be pertinently mentioned that one of the applications which was filed by the appellants was for stay of proceedings in view of the arbitration agreement between the parties.
That application too was dismissed by the learned Civil Judge on the same date when the decree was passed. It is beyond one's comprehension as to how could defendant be penalised for not filing the written statement when he had tiled an application under the Arbitration Act for stay of proceedings. Before first disposing of that application neither the written statement could be called for nor any penalty could be imposed.
8. So far as the legal aspect of the case is concerned it is useful to reproduce Order VIII, rules 1, 9 and 10, Code of Civil Procedure which are as follows:- "Order VIII:
1. Written statement.--The defendant may, and, if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence: Provided that the period allowed for filing the written statement shall not ordinarily exceed thirty days.
9. Subsequent pleadings.--No pleading subsequent to the written statement of a defendant other than by way of defence to a set off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.
10. Procedure when party fails to present written statement called for by Court.--Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
9. From the above it will be appreciated that Order VIII, rule 1 provides a defendant may file the written statement while rule 9 directs it to do so. The question as to whether Order VIII, rule 10 could be applied to cases where there is no direction as such by the Court to file the written statement under rule 9 as has been subject-matter of controversy but now it stands settled by the Supreme Court of Pakistan in Sardar Sakhawatuddin and 3 others v. Muhammad lqbal and 4 others 1987 SCM R 1365 wherein it was observed:-- "It is clear from the combined reading of Order VIII, rules 1 and 9, C.P.C. That amongst others three types of written statements can be filed by a defendant:--
(1) As of right without any formal permission of the Court (Rule 1).
(2) When it is so required by the Court to file a written statement (Rule 1 and Rule 9).
(3) When under some circumstances it is under leave of the Court. (Rule 9). 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." The ratio of the cited case is fully applicable to the suit in hand where the time was granted for filing the written statement at the request of the appellants once but there was no order requiring the defendants-appellants to file the written statement under rules 1 and 9 of Order VIII, Civil Procedure Code.
10. In the same authority it has been laid down that Order VIII, rule 10 of Code of Civil Procedure was penal in nature and had to be strictly constituted and whenever a reasonable doubt arises regarding its interpretation/implementation it would be resolved in favour of the victim of the application.
11. In The Secretary, Board of Revenue, Punjab, Lahore v. Khalid Ahmad Khan 1991 SCMR 2527 it was emphasised that there should be a specific speaking order under rule 9, Order VIII of Civil Procedure. Code before the defence of a defendant could be struck off. It was further held that rule 9 uses the word requirement and as such a speaking order in that behalf has to be passed in absence of which rule 10 has no applicability.
12. While it is true that according to rule 1 of Order VIII of Code. Of Civil Procedure the written statement should generally be filed within a period of 30 days but at the same time it is to be noted that the provision does not lay down an inflexible rule that in all the cases the written statement must be filed within 30 days. The matter falls within the discretion of the Court which should be exercised judiciously, reasonably and, properly keeping in view the facts and circumstances of each case. Furthermore, as already held rule 10 has no applicability to the written statements to be filed under rule 1 of Order VIII of Code of Civil Procedure.
13. The other serious error committed by the learned Civil Judge in the present case is that he did not realize the nature of dispute between the parties and the claim made by the plaintiff in the plaint. The suit was based upon breach of contract between the parties in which decree for specific performance and recovery of damages was prayed for. Such a suit per force could not be decided without recording any evidence. Consequently even if the defence of the appellant was struck off it behooved the trial Court to ask the plaintiff to prove its case for recovery of damages and specific performance of contract by placing sufficient material on the record in the form of evidence.
Nothing appears to have been done in this respect and the Court has acted in a mechanical manner without due application of law.
14. This proposition is too well known to need any authority but reference may be made to Haji Muhammad Moosa and another v. Provincial Government of Balochistan 1986 CLC 2951 wherein it was held that on failure of defendant to file written statement within specified time the trial Court would have power to pronounce judgment or to make such order as it deemed fit. However, without giving any reasons or even indicating application of mind the suit was decreed. The trial Court has acted arbitrarily in exercising discretion by pronouncing judgment without taking further proceedings in matter. The same view was expressed by a Division Bench of Peshawar High Court in Project Director, Gadoon Amazai Area Development Project, Swabi, Mardan v. Latif Gul 1992 M LD 2026. A Division Bench of this Court in Nisar Ahmad and another v. Habib Bank Ltd., Lahore 1980 CLC 981 has ruled that even written statement has been struck off the suit could not be decreed on mere ipsi dixit without any proof whatsoever.
15. It follows from the above that neither the appellant was given a sufficient opportunity for filing the written statement nor was the appellant required to file a written statement in terms of rule 9 of Order VIII of Civil Procedure Code and in any case the suit could not have been decreed without further proceedings. As a result of what has been stated above, this appeal is allowed, impugned judgment of the trial Court.Is set aside and the case is remanded to the trial Court for decision afresh after giving sufficient opportunity to the appellant to file the written statement.##TE# No order as to costs.