MUNIR A. SHEIKH, J.--The petitioner seeks leave to appeal against the judgment dated 21-11-2001 of the Lahore High Court, Lahore through which revision petition filed by respondent No,1 has been'accepted.
2. The facts of the case giving rise to this petition shortly stated are that the petitioner filed a suit on 24-11-1998 for the recovery of damages to the tune of 12.75 millions U.S. Dollars against respondent No,1. It was registered on the same date and the trial Court passed an order for issuance of summons to the respondent for 21-12-1998. According to the order recorded on 21-12-1998, learned counsel for the petitioner appeared but the summons issued to the respondent had not been returned after service, therefore, an order was passed for issuance of summons afresh to the respondent and the explanation of the process-server was also called. The case was adjourned to 4-2-1999 on which date, learned counsel for the petitioner appeared but it was found that the summons could not be issued to the respondent, therefore, an order was passed for issuance of fresh summons for 27-2-1999. It is, however, manifest from the said order that before the same had been signed, Syed Asif Shah, Advocate appeared on behalf of the respondent and the case was adjourned for filing written statement on the date already fixed i,e, 27-2-1999. On 27-2-1999, learned counsel for both the parties appeared before the Court and an application was made on behalf of the respondent under Order VII, rule 11, C.P.C. For rejection of the plaint of the suit and the case was adjourned to 24-3-1999 for filing reply by the petitioner to the said application. On 24-3- 1999, a request was made on behalf of the petitioner to grant an opportunity to file reply to the said application, therefore, the case was adjourned to 19-4-1999 for the said purpose. On 19-4-1999 reply to the said application was filed by the petitioner and it was postponed to 11-5-1999 for consideration of the said application. On 11-5-1999, learned counsel for the respondent/defendant requested for an adjournment to make submissions on the said application and the case was adjourned to 22-5-1999. On 22-5-1999, learned counsel for both the parties made request for adjournment to make submissions on the said application, therefore, the case was adjourned to 26-6-1999 for arguments. On 26-6-1999, it was observed by the trial Court that an application had been moved for the transfer of the suit to some other Court, therefore, the case was adjourned to 24-7-1999 to await the decision on the said application. It appears that in the meantime, the suit was transferred to some other Court which was received by the transferee Court on 19-7-1999 on which date learned counsel for both the parties appeared and the said Court observed that another suit was also pending between the parties in the same Court which had been fixed, for 26- 7-1999, therefore, this case was also adjourned to the said date. On 26-7-1999, Mr. Rafiullah attorney of defendant No,2 was present but nobody appeared on behalf of defendant No,1, therefore, the Court ordered for issuance of notice to him for 25-9-1999. On 25-9-1999, the learned Presiding Officer, was on leave, therefore, the case was adjourned to 16-10-1999. The presence of learned counsel for the plaintiff and Attorney-Rafiullah of defendant No,2 was recorded by the Reader of the Court. On 16-10-1999, learned counsel for both the parties appeared and the case was adjourned for argument on the said application under Order VII, rule 11, C.P.C. To 30-10-1999. On 30-10-1999, arguments were partly heard on the said application and for remaining arguments, the case was adjourned to 13-11-1999 on which date learned counsel for the respondent-defendant requested for adjournment to which learned counsel for the petitioner-plaintiff had no objection, therefore, the case was adjourned to 4-12-1999. On this date, learned counsel for both the parties appeared and on their request, the case was adjourned to 20-12-1999 for arguments on the said application on which date the learned Presiding Officer was again on leave and after recording the presence of learned counsel for both the parties, the Reader of the Court adjourned the case to 15- 1-2000 for the same purpose. On 15-1-2000, a request for adjournment was made by respondent No,1 through a written application, therefore, the case was postponed to 29-1-2000. On 29-1-2000, the arguments on.The said application seeking rejection of the plaint were heard and concluded and the case was adjourned to 4-2-2000 for announcement of orders. On 4-2-2000; the trial Judge observed that it could not write the order on account of his being busy in other cases in which direction had been issued by the High Court to expedite the hearing. The case was adjourned to ' 10-2-2000 on which date it was again adjourned to 17-2-2000 for the same reasons.
On 17-2-2000, the said application was dismissed and the case was adjourned to 4-3-2000 for filing the written statement. On 4-3-2000, a request was made for filing of written statement. It was adjourned to 11-3-2000. It appears that in between, some proceedings had been initiated before the higher forum may be against the order dated 17-2-2000 of dismissal of application of the respondent-defendant under Order VII, rule 11, C.P.C., therefore, the record of the suit was not available with the trial Court which appeared to have been summoned in the said proceedings.
According to the certified copies of the interim orders placed on the record by the petitioner, the case was taken up on 5-3-2000 on which date learned counsel for the petitioner-plaintiff appeared. It has been recorded in this order that the file had been received back from the appellate Court but none had appeared on behalf of the defendant, therefore, it was ordered that notice "Pairvi" be issued to the defendant and his learned counsel for 17-5-2000. On 17-5-2000 on behalf of learned counsel for the respondent-defendant Mr. Shahzad Mazhar, Advocate appeared on whose request, further opportunity was given to file written statement subject to payment of Rs,500 and the case was adjourned to 1-6-2000. On 1-6-2000, another request was made for giving opportunity to the defendant to file written statement but it was observed that neither the written statement had been filed nor the costs paid, therefore, the Court declined to grant further opportunity as requested and his right to file written statement/defence was struck off and the case was adjourned to 5-7-2000 for recording of evidence of the plaintiff-petitioner. On 5-7-2000, the plaintiff did not produce ex parte evidence and made a request for adjournment of the case which was adjourned to 16-9-2000, The respondent-defendant moved an application seeking review of the said order which was rejected on 13-2-2001. The respondent on 26-3-2001 filed a revision petition before the learned District Judge, Lahore in which he challenged the legality of both the orders dated 1-6-2000 and 13-2-2001 which remained pending till 29-9-2001 without any objection on the ground of lack of pecuniary jurisdiction of the said Court to entertain the said application either by the office of the Court or by the present petitioner. On 29-9-2001, however, an objection was raised on behalf of the present petitioner that the learned District Judge for want of pecuniary jurisdiction in the matter was not vested with the jurisdiction to entertain the said revision petition, therefore, the same was returned to the respondent for presentation before the proper Court i,e, the High Court. The revision petition before the High Court was thereafter filed after receiving the same from the Court of learned District Judge on 24-10-2001 which has been accepted through the impugned judgment dated 21-11-2001 by the learned Judge in Chamber of the said Court by holding that penal provisions embodied in Order VIII, rule 10, C.P.C. Were not attracted on account of non-fulfilment of necessary conditions under which the same could be invoked, therefore, the order passed on 1-6-2000 for closing the defence of the respondent- defendant was without being jurisdiction. On the same ground, the learned Judge of the High Court declined to dismiss the revision petition on the ground of limitation holding that the said orders being violative of the mandatory provisions of law and without jurisdiction, therefore, the question of limitation could not he raised against such an order. The petitioner wants to challenge the legality of the said judgment, therefore, through this petition, he seeks leave to file the appeal.
3. We have heard learned counsel for the petitioner at length and also examined the relevant provisions of the Civil Procedure Code as contained in Order VIII and in particular rules 1, 9 and 10 of the said Order which require examination as to whether the principles of interpretation thereof laid down in reported judgments have been correctly applied in this case.
4. The argument of learned counsel.For the petitioner was mainly based on the rule laid down by this Court in the case of Mst.Hakumat Bibi v. Imam Din and others (PLD 1987 SC 22). The judgment in this case was announced on 12-11-1986. According to the facts of the said case, a second adjournment was granted to file written statement which was granted subject to payment of costs and it was also made clear that no further adjournment would be granted. On the said adjourned date, the written statement was not filed, therefore, the Court proceeded to pronounce judgement under Order VIII, rule 10, C.P.C. An appeal was filed against the judgment and decree which was dismissed and the matter came up before this Court. This Court held that in the circumstances of the case, conditions laid down by law for applicability of penal provisions of Order VIII, rule 10, C.P.C.
Had been fulfilled, therefore, the order of pronouncement of judgment under the said provisions was valid.
5. Learned counsel for the petitioner also placed reliance on the case of Azad Hussain v. Haji Muhammad Hussain (PLD 1994 SC 874) in amplification of his arguments based on Mst.Hakumat Bibi's case (supra). According to the facts of this case, as suit was filed for the recovery of a specified amount on the basis of a pronote. The defendant appeared before the trial Court on a date fixed along with his learned counsel and got his statement recorded which was to the effect that he admitted his signatures on the photocopies of pronote and also produced photocopy of his identity card which statement was signed by him. On his request, however, the case was adjourned to 28-11-2001 for filing of written statement on which-date he did not file written statement and made another request for allowing him opportunity to file written statement. Another opportunity was granted subject to .The condition duly indicated in the order that no further opportunity would be granted and .He was also burdened with costs of Rs,500. On the said adjourned date, however, the defendant appeared but did not file written statement, therefore, the suit was decreed under Order VIII, rule 10, C.P.C. In the facts and circumstances of this case, by applying the rule laid down in Mst.Hakumat Bibi's case (supra), this Court held that conditions for applicability of penal provisions of Order VIII, rule 10, C.P.C. Had been fulfilled, therefore, pronouncement of judgment against the defendant in those circumstances was in accordance with law, as such, the said petition was dismissed and leave declined.
6. After the decision in Mst. Hakumat Bibi's case (supra) on 12-11-1986 before a Bench consisting of four learned Judges of this Court, the provisions of Order VIII, rules 1, 9 and 10, C.P.C. Canie up for consideration in the case of Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others (1987 SCM R 1365). On extensive and detailed scrutiny of the provisions of Order VIII, rules 1, 9 and 10, C.P.C., this Court in concrete form laid down the law as to when and in what circumstances, the penal provisions of Order VIII, Rule 10, C.P.C. Could be invoked. It has been held in this judgment that it was clear from the combined reading of Order VIII, rules 1 and 9, C.P.C. That amongst others, three types of written statements could be filed by a defendant:--
(a) As, of right without any formal permission of the Court (rule 1);
(b) when it is so required by the Court to file a written statement (Rule 1 and rule 9);
(c) when under. Some circumstances it is by the leave of the Court (Rule 9).
7. It was further held that it was obvious from rule 10 of this Order that no adverse results under these rules were 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 a defendant when fails to file written statement when so required", as was indicated in Item No,2, above would follow.
8. It has also been held in the judgment that relevant provisions of Order VIII, C.P.C. Being penal in nature would have to 'be strictly construed/applied, hence whenever a reasonable doubt would arise regarding its interpretation or implementation, the same would have to be resolved in favour of the victim of their application. Otherwise its requirements would have to be established like those of Order XVII, rule 3, C.P.C. Which is similarly penal in nature.
9. As to what is the meaning of the expression "required" used in Order VIII, rule 10, C.P.C. Which would attract the penal provisions of the said rule, it has been held as under:-- "There is another very important aspect of the matter. All the three types of written statement mentioned earlier do not entail penal consequences. Therefore, it would always be absolutely clear from the proceedings that the written statement on account of which penalty is sought to be imposed was 'required', by the Court. It was neither of right (rule 1) nor as result of permission (rule 9). The use of word 'required' is not without significance. It does not permit a routine order without application of mind to the 'requirement' and/or the need. Therefore, it is essential that whenever a written statement is to be made subject of the penal rule 10, there should be proof on record that the Court had 'required' it by application of mind to the need and that too in a speaking order.
Without the same, many innocent parties would be trapped in .a technicality without fully realising the implications. In this connection, it is made clear that whenever adjournments are granted for production of a written statement which can be filed as of right under rule 1 or which is permitted to be filed under rule 9, that would not satisfy the law regarding the 'requirement' of the Court. It is only the written statement which is 'required' and that too by 'the Court' by a speaking order, which would entail the penal consequences of rule 10. In these two cases it has been admitted before us that these requirements have not been fulfilled."
10. The principle laid down in this case has been duly taken note of in the case of Azad Hussain (supra), and also in the case of The Secretary, Board of Revenue, Punjab, Lahore and another v.
Khalid Ahmad Khan (1991 SCMR 2527). In the latter case, it was held as under:-- "We having perused the relevant Order sheet, are satisfied that the rule laid down by this Court reproduced above regarding the `requirement' of the Court and a speaking order in that behalf is lacking in this case. Accordingly, the impugned judgment merited to be set aside."
11. In the case of The Secretary, Board of Revenue (supra), the principle as laid down in the case of Sardar Sakhawatuddin (1987 SCM R 1365), was applied by holding that about the written statement which was made subject to rule 10, C.P.C., there should be proof on the record that the Court had "required" it by application of mind and that too should be indicated through speaking order, therefore, in the said case, the pronouncement of judgment under rule 10 was set aside as it was found that there was no speaking order to show application of judicial mind that the Court itself required the filing of the written statement and not merely that the request of the defendant to file written statement as of right had been disallowed.
12. In the present case, it was a suit for the recovery of huge amount as damages and not an amount directly recoverable under a pronote or other such-like document. It is also clear from the order sheet which has been taken note of in the earlier part of the judgment that the case had been adjourned sometimes on the request of both the parties but mostly on the request of the respondent-defendant on account of ancillary matters like filing of application under Order VII, rule 11, C.P.C. And sometimes the file was not available because the record had been summoned by the Appellate Court. Anyhow, it is clear that the respondent-defendant had been granted a number of adjournments on his request to file written statement as of right. In the order dated 17-5-2000, which is the relevant and crucial order to determine whether it constitutes a speaking order made by the Court on application of judicial mind requiring the respondent-defendant to file written statement though he had failed to file the same as of right. According to this order, the case was adjourned on the request of the defendant by giving him further time to file written statement subject to the payment of Rs,500 as costs but there is nothing in this order expressing any command by the Court that the same was the last opportunity and no further opportunity would be granted. In the cases of Hakumat Bibi and Azad Hussain (supra) while holding that provisions of Order VIII, rule 10, C.P.C. Became applicable, it was noticed by this Court that the trial Court while granting adjournment to file the written statement on the request not only imposed the condition of payment of costs but also made it clear that the same was either the last opportunity or no further opportunity would be granted. In the circumstances of those cases, keeping in view the nature of the suit, it was held that the use of the expression by the Court that no further opportunity would be granted by it to file written statement was sufficient to disclose its intention that the Court had required him to file the written statement. In the case of Azad (supra), as observed above, this rule was applied keeping in view the additional fact that the defendant had earlier appeared before the Court and admitted his signatures on the pronote on the basis of which the suit had been filed and had failed to file written statement in spite of last opportunity granted to- him subject to payment of costs with clear order that the Court would not grant any further opportunity.
In these circumstances, in such a case, the Court appears to have been persuaded to presume that after having admitted his signatures on the pronote, the failure of the defendant of filing written statement in spite of the last opportunity given by the Court, the suit could be decided on the basis of his admission as to presence of his signatures on the pronote. The order dated 17-5- 2000 passed by the trial Court in the present case is materially different, for it did not use the expression that it was the last opportunity to file written statement or that no further opportunity would be granted, therefore, the rules laid down in Hakumat Bibi and Azad cases are not attracted, as such, reliance placed on them by the learned counsel for the petitioner is wholly misconceived and misplaced.
13. It is manifest from the examination of the record and the orders passed by the trial Court in this case that though a number of opportunities were granted to the defendant on his request as of right to file written statement but the Court itself did not require the defendant to file the written statement, as such, rule 10 of Order VIII, C.P.C. Was not attracted, as such, no power or jurisdiction was vested in the Court in these circumstances to proceed under the said rule and close defence of the respondent-defendant. From the perusal of the record of the trial Court of the suit copies of which have been appended with this petition by the learned counsel for the petitioner, it can safely be held that there was no application of judicial mind by the trial Court that it intended to exercise power of requiring the defendant to file written statement even if the said defendant had failed in exercise of his right to file the same. Such order was necessary. The trial Court was required under the law to pass such an order keeping in view the facts of the case as pleaded in the plaint whether it would require a written statement so that the controversies arising from the pleadings could be decided effectively and finally. The rules laid down in the case . Of The Secretary, Board of Revenue and Sardar Sakhawatuddin (supra) were fully attracted as the facts and circumstances of this case are similar to the facts of the cases. Distinguishing features of this case from the cases of Hakumat Bibi and Azad have already been highlighted, in that, in the present case, the Court did not pass any order that it would not grant further opportunity to the defendant in case he would fail to file written statement on 1-6-2000.
14. Apart from what has gone before, we may also observe here that even if it is assumed that provisions of Order VIII, Rule 10, C.P.C. Were attracted, the trial Court was not bound to pass order for closing the defence of the defendant, for it confers discretion on the Court to pass an order as envisaged by the said rule. The law is well-Settled by now that whenever the law confers on any Court discretion to make an order, the same has to be exercised on application of judicial mind based on relevant considerations, in just and proper manner to advance the cause of justice and not whimsically and arbitrarily. From the order dated 1-6-2000, it is manifest that the Court proceeded mechanically as if it had been left with no alternate but to close the defence of the respondent-defendant which assumption has not only resulted in miscarriage of justice but failure to exercise power and jurisdiction vested in the Court to pass proper order in this case.
15. The next question which falls for consideration is the objection of limitation raised by the learned counsel for the petitioner before the High Court and vehemently argued by him before us. The revision petition was originally filed before the learned District Judge, Lahore who was not vested with the jurisdiction to entertain the same. As observed above, it ^remained pending without any objection by the said Court itself or from the present petitioner. The day on which this objection was raised, the learned District Judge passed an order for return of the memo. Of revision petition for presentation before the proper Court which was the High Court. It was presented before the High Court after receiving the same from the said Court.
16. There is no dispute that in view of the amount subject-matter of the suit, the learned District Judge lacked pecuniary jurisdiction to entertain the revision petition. When it was presented before the proper Court i,e,, the High Court, it was certainly barred by time. The limitation was sought to be condoned on the ground that on account of wrong advice given by the learned counsel who had been engaged in this case by the respondent to file the "revision petition, the same was presented before the wrong forum, as such, the mistake was bona fide for which the respondent was not at fault as he had done what was required of him to do i,e,, engage a counsel to prosecute the matter.
17. Learned counsel for the petitioner relying upon the judgments reported as Sherin and 4 others v.
Fazal Muhammad and 4 others (1995 SCM R 584), Ghulam Ali v. Akbar alias Akoor and another (PLD 1991 SC 957) and Mian Aizad Bakhsh v. Sheikh Muhammad Afzal (1985 SCM R 1003) and a number of other judgments argued that this was not held to be a sufficient ground for condonation of delay by the Courts, therefore, the order of the High Court for condonation of delay is not sustainable as such, the said revision petition was liable to be dismissed on the ground of limitation. This being so, according to learned counsel, the merits of the case were not required to be gone into.
18. There can be no cavil with the proposition that mere wrong advice by a counsel in the matter by itself in isolation is not considered as sufficient ground for condonation of delay but each case has to be considered in which question of limitation is raised keeping in view peculiar circumstance of that case. In the present case, the High Court was seized of the revision petition and was exercising jurisdiction under section 115, C.P.C. Under which a right has also been conferred on aggrieved person to file revision petition. The Court itself was vested with the power to call for record of any case to satisfy itself whether any order was valid in that the same did not suffer from any irregularity amounting to illegality or was bad for want of jurisdiction. This aspect of the case has to be kept in view while deciding in the present case whether the order passed by the trial Court for closing the defence of the respondent was valid and what was the extent of illegality attached to it.
Learned Judge of the High Court came to the conclusion that in the facts and circumstances of this case, the conditions laid down by the relevant law for applicability of penal provisions of rule 10 of Order VIII, C.P.C. Had not been fulfilled, therefore, the said order was without jurisdiction, 'therefore, it proceeded to set aside the same by condoning the delay by holding that in such matters, the point of limitation would not stand in the way of the Court to do justice.
' It may significantly be observed here that there is difference between a case where the Court though vested with the jurisdiction to pass an order but while passing the same, some technical errors were committed which did not affect the jurisdiction of the Court and the case in which the Court though is not vested with the jurisdiction and power to pass an order but it passes the same.
In the latter case, the higher Court before whom such an order is challenged would decide question of condonation of delay keeping in view that maintenance of the said order ,on the ground of limitation would perpetuate an order which was nullity having been passed by the Court vested with no jurisdiction giving undue advantage to party deriving benefit thereunder. In this case, the High Court after having held that the order impugned in the revision petition being without lawful authority, therefore, proceeded to struck it off in order to avoid perpetuation of an order having been passed without jurisdiction. This view finds support from the case of Syed Haji Abdul Wahid and another v. Syed Sirajuddin (1998 SCM R 2296). Paragraph 16 of this judgment has laid down the principles to be followed in such matters which is reproduced below:-- "16. The learned counsel for the appellants contended that above view expressed in Sherin's case in conflict with the view expressed by this Court in Abdul Ghani's case and as the numbers of Hon'ble Judges in both the cases were equal, the matter may be referred to a larger Bench to resolve the conflict. It is true that Sherin's case has not noticed the decision in Abdul Ghani's case. However, after examining the ratio decidendi of both cases which we have reproduced above, we are of the view that there is no conflict in the opinion expressed in the above two cases. In any case, this controversy does not arise in the present case as the judgment of trial Court was set aside any delay was condoned by the learned Judges of the High Court on reaching the conclusion that the judgment passed by the trial Court was a nullity in the eyes of law, and therefore, the bar of limitation would not apply".
Therefore, the condonation of delay made by the learned Judge of the High Court in this case was based on valid and relevant considerations so that an order which was without jurisdiction and as such nullity may not be perpetuated.
19. For the foregoing reasons, we find no merits in this petition which is accordingly dismissed and leave refused. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.
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