Through this revision, Mohammad Amin resident of Mohallah Lakar Mandi, Illaqa Dabgari, Peshawar City and Mst. Gulfarosha widow of Murad Khan resident of village Sufaid Dheri, Tehsil and District Peshawar, have sought the setting aside of the judgment and decree of the learned District Judge, Peshawar dated 16-5-75 whereby the appeal of the defendant-petitioners from the order (judgment and decree) of the learned Civil Judge, Peshawar dated 15-11-74 striking out the defence of the defendant-petitioners and passing a decree in favour of the plaintiff-respondents in their suit for a declaration and in the alternative for possession regarding certain land situated in village Sufaid Dheri, Tehsil and District Peshawar was dismissed.
2. Brief facts leading to this revision petition are that on 9-4-74, Shamroz and Mst. Rahim Jan plaintiff-respondents brought a suit for declaration to the effect (A) that the decree granted by the learned Additional Civil Judge, 3rd Class, Peshawar on 30-1-69 in Suit No. 4/1 (Mohammad Amin etc. v. Gul Mohammad Khan) regarding land measuring 23 kanals 2 marlas out of 30 kanals 16 marlas comprising of Khasras Nos. 2802/1780/ 1-1802,/1223, 1800, 1418, 1419, 1426, 1430, 1425, 1217, 1487, 1214, 1211, 1483, 1484, 1486, 4745/1431, 1432 situated in village Sufaid Dheri, Tehsil and District Peshawar, is null and void and ineffective on the rights of the plaintiffs, that mutations Nos. 3050 and 3469 attested on 10-5-71 and 21-9-72 respectively are also void and ineffective and that the plaintiffs are owners in possessions of their shari share in the suit property and in the alternative (B) decree for joint possession of the suit land of the plaintiffs, share according to Muhammadan Law against the defendants in favour of the plaintiffs in case their possession over suit land is not proved.
3. The trial Court after carrying out the necessary formalities of issuing summons etc. Fixed 25-7- 1974, for the appearance of the defendants when on the said date defendant-petitioners 1 and 2 appeared before the Court and submitted a joint written statement whereas the rest of the defendants were placed ex parte. On the same date, the learned trial Court directed the plaintiff- respondents to submit replication to the written statement on the next date of hearing i.e. 25-9-74.
On receipt of replication on the said date from the plaintiff-respondents, the learned trial Court framed the necessary issues and directed the parties to submit their lists of witnesses on 21-10-74.
On the above date i.e. 25-9-74 the plaintiff respondents filed an application praying therein for the striking cup- the defence of the petitioner --defendants under Order VIII rule 12, C. P. C. Because the said defendant-- petitioners had failed to comply with the mandatory provisions of Order VIII, rule 11, C. P. C.
4. The learned trial Court asked for the reply from the petitioner-- defendants to the above application and directed that the arguments will also be heard or that date i.e. 21-10-74 on which date arguments could not be heard but the petitioner-defendants submitted a reply refuting therein the above stand taken by the plaintiff defendants Nos. 1 and 2 along with the reply also filed the address of defendants. The case was, however, adjourned for arguments on 8-11-75.
Arguments on this date were heard and order for striking out the defence of the petitioner- defendants was passed and a decree prayed for at (A) granted to the plaintiff-respondents. An appeal by the petitioner-defendants before the learned District Judge, Peshawar was dismissed vide his judgment dated 10-5-77.
5. In this revision petition two points were urged before me and they are whether the two Courts below have rightly interpreted the provisions of Order VIII, rule 12, C. P. C. Which- has resulted in the striking out the defence of the petitioner-defendants and whether under given circumstances the two Courts below had no alternative but to strike out the defence of the petitioner-- defendants.
6. Mr. D. M. Kamil Advocate appeared for the petitioner-defendants while Mr. Mohammad Amin Khan, Advocate represented the plaintiff-res--pondents. The learned counsel for the petitioner- defendants severely criticised the judgments of both the Courts below. He submitted that both the Courts below have failed to interpret the relevant provision of Civil Procedure Code correctly which has resulted in the miscarriage of justice. He further submitted that both the Courts have also failed to exercise the jurisdiction vested in them by law on account of their misconception that the law left them with no dis--cretion in the matter. His contention was that the provisions of Order VIII, rule 12, C. P. C. Are not mandatory, therefore, both the Courts have, in view of the matter, acted with great irregularity in failing to exercise jurisdiction vested in them. In support of his contention, the learned counsel for the peti--tioner-defendants cited two Authorities, namely, A. I. R. 1929 Lah. 459 and AIR 1935 Lah. 791.
On the other hand, Mr. Mohammad Amin Khan learned counsel for the plaintiff-respondents in support of the judgment of the Courts below vehe--mently contended that the provisions of Order VIII, rule 12, C. P. C. Are mandatory and it has been correctly interpreted by both the Courts below that the provisions being mandatory in nature, the Courts were, therefore, left with no discretion to be exercised in favour of the party who had failed to comply with the provisions of preceding rule i.e. Order VIII, rule 11, C. P. C. He, therefore, submitted that where the Legislature intended to invest the Court with powers to exercise discretion it has done so with unambiguous words. In order to substantiate his contentions, the learned counsel drew my atten--petition to Order VII, rule 21, C. P.
C. Under this rule, he submitted that if the plaintiff or petitioner failed to comply with the provisions of Order VII, rule 19, C. P. C., the Court has been allowed discretion to be exercised in favour of the plaintiff or the petitioner, as the case may be, by adding a phrase at 'the end of the said rule "to make such an order as it thinks just". The omission of this phrase or its equivalent from rule 12, Order VIII, C. P. C. He stressed, made it abundantly clear that no such discretion was allowed to the Court to be exercised in favour of the defendant who has failed to comply with the requirements of the preceding rule i. e. Rule 11 of Order VIII, C. P. C. And that the language of Order VIII, rule 12 is so clear that the Court could not make any departure from the provisions so enacted. In support of his contention the learned counsel relied on a D. B. Authority of this Court reported in PLD 1972 Pesh.
66 and another Authority of this Court reported in the same book at p.
128. He, therefore, concluded that the revision petition, in view of these circumstances merit dismissal.
7. After hearing the arguments of the learned counsel for the parties at length and carefully analyzing the provisions of Order VII, rule 21 and Order VIII, rule 12, 1 have come to the conclusion that the two Courts below have wrongly interpreted the provisions of Order VIII, rule 12 which has resulted in the miscarriage of justice in this case. In order to facilitate reference I reproduce below the provisions of Order VII, rules 19 and 21 and Order VIII, rules I1 and 12.
Order VII: "Rule 19. Every plaint or original petition shall be accompanied by a proceeding giving an address at which service of notice, summons or other process may be made on the plaintiff or petitioner.
(2) Plaintiffs or petitioners subsequently added shall immediately on being so added file a proceeding of this nature.
Rule 21. Where plaintiff or petitioner fails to file an address for service, he sha!1 be liable to have his suit dismissed or his petition rejected by the Court suo motu or any party may apply for an order to that effect, and the Court may make such order as it thinks just.
Order VIII: Rule 11. Every party, whether original, added or substituted, who appears in any suit or other proceedings, shall on or before the date fixed in the summons, notice or other process served on him file in Court a proceeding stating his address for service.
(2) Such address shall be entered in the Register of suits to be maintained under Order IV, rule 2.
(3) Rules 20, 23, 24 and 25 of Order VII shall apply, so far as may be, to addresses for service filed under this rule.
Rule 12. Where a party fails to file an address for service as provided in the preceding rule, he shall be liable to have his defence, if any, struck out and to be placed as if he had not defended.
(2) The Court may pass an order under subsection (1) suo motu or on the application of any party."
From the plain reading of Order VII, rule 19 and Order VIII, rule 11, it is evident from the language used in their construction that they are mandatory in nature inasmuch as that a duty has been cast upon the plaintiff-- petitioner and the defendant, as the case may be, to file the address. The failure on the part of the party concerned to comply with the above provisions is dealt with under Order VII, rule 21 and Order VIII, rule 12 with which I am presently concerned.
8. If a comparative study of Order VII, rule 21 and Order VI 11, rule 12 is made, one can, without hesitation reach a conclusion that both of these rules are analogous to each other except that the phrase 'to make such - order as it thinks just" which appears in the end of Order VII, rule 21 is omitted from rule 12 of Order VIII. In both of the above rules i.e. Order VII, rule 21 and Order VIII, rule 12 the intention of the Law-maker allowing discretion to the Courts in case of the plaintiff-petitioner failing to comply with the provisions of Order VII, rule 19 as well as failure on the part of the defendant to comply with the provisions of Order VIII, rule 11 has been made manifest by inserting the phrase shall be liable to dismiss the suit or reject the plaint petition in case of the plaintiff- petitioner and to strike out the defence in case of the defendant. If the Legislature had not allowed any discretion to the Court, there was no reason as to why it should not have inserted or used the word shall instead of the phrase shall be liable. The definition of the word liable as, given in the Webster's New International Dictionary, 2nd Edition, Volume I is as under: - ---Bound or obliged in law or equity; responsible; answerable; as the surety is liable for the debt of his principal ; also, now rarely, with to, as, all his property is liable to pay his debt and to taxes
(2) exposed to a certain contingency or casualty, more or less probable and, in modern use, of an undesired, or harmful character." ---Bound or obliged by law; compellable to make satisfaction of a claim or debt. Exposed to a certain contingency or casualty more or less probable; financially responsible to be obliged to pay, at least, upon a contingency; According to the context the word may mean bound or obliged; likely or probable.--- ---(1) It means very little more than under an obligation.
(2) It can only mean that a cause of action exists; and
(3) It means a future possibility or probability happening which may or may not actuallyoccur.--- From the meaning given in the word ---liable--- it appears to me that its use in the expression --- shall be liable--- in Order VII, rule 21 and Order VIII, rule 12 is not without significance. In some of the meanings given to the word liable in the various dictionaries cited above it cannot be said that it necessarily puts art obligation on the Court to dismiss the suit or to reject they plaint in case the plaintiff-petitioner who fails to comply with the provisions of Order VII, rule 19 or to strike out the defence of the defendant in case of his failure to comply with the provisions of Order VIII, rule 11. If the meaning as given in the Dictionaries is to be scrutinised thoroughly the use of the phrase shall be liable would mean that the Court has a discretion to exercise in favour of the defaulting party in suitable cases.
9. The proposition advanced by the learned counsel for the plaintiff respondents that under Order VII, rule 21 the Court by the addition of the phrase ---the Court may make such an order as it thinks just ---in the end of the said Rule is vested with the discretion to be exercised in favour of the e plaintiff-petitioner in case of his failure to file address with the plaintiff/ petitioner but no such discretion is allowed to be exercised by the Court under Order VIII, rule. 12 in favour of the defendant in case of his failure t comply with the provisions of Order VIII, rule 11, C. P. C., is manifestly incorrect inasmuch as in such a situation the defendants will be placed in a disadvantageous position which is against the very Fundamental Principles of Law. Moreover according to the Rule of interpretation the intention of the Legislature is gathered from the language it chooses in the construction of a statute and that can only be done when the Statute is to be taken as a whole. Since the Legislature in its wisdom has used the phrase ---shall be liable--- in Order VII, rule 21 and Order VIII, rule 12, its intention is. Abundantly clear in that, that it has allowed discretion to the Courts to be exercised in favour of the plaintiff as well as the defendant in case of the failure on the part of the plaintiff or defendant in filing address.
10. The other fact which has weighed with me in this case is that the case in hand is in its preliminary stages and is a contested one. In view, therefore, of this Court authority reported as PLD 1960 Pesh. 108 if the plaintiff-respondent had been directed to produce some evidence in support of their case the petitioner-defendant might have been successful in defending the decree obtained by them which is the subject-matter of this suit.
11. As a not result of the foregoing discussion this revision is accepted, the orders of both the Courts below are set aside and the case remanded to the trial Court with the direction to proceed with the case in accordance with law on merits. Keeping in view the fact that a legal point is involved in the matter, I leave the parties to bear their own costs. The petitioner is, however, burdened with a special cost of Rs. 200 which he would pay to the respondents because of his failure to comply with the provisions of Order VIII, rule 12. 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.