' MUHAMMAD SAIR ALI, J.--- Invoking, provisions of Order VIII, rule 10 of the First Schedule to Civil Procedure Code, appellants' right to defence was struck off and the learned Civil Judge, Lahore decreed respondents' suit with costs by pronouncement of judgment and decree, dated 16-10- 1996.
2. The appellants on 17-10-1996 filed an application under Order IX, rule 13 read with section 151, C.P.C. For setting aside the above said decree, dated 16-10-1996 claiming that on 13-10-1996, the suit was adjourned to 17-10-1996 when the appellants were informed by the Court Reader about augment of the case on 16-10-1996 and that the case had been mistakenly fixed for 16-10-1996 when no one appeared for the appellants. And that owing to their absence on 16-10-1996, the decree was passed ex parte against them which is liable to be set aside under the provisions of Order IX, rule 13, C.P.C. On 13-11-1996 respondents filed their reply. The learned Civil Judge, Lahore by order, dated 15-1-1997 dismissed the said application holding that the decree was not an ex parte decree so as to attract Order IX, rule 13, C.P.C. The appellants thereupon filed present R.F.A. To challenge original judgment and decree, dated 16-10-1996 alongwith an application under section 5 read with section 14 of the Limitation Act to seek condonation of delay on the basis of diligent prosecution of petition under Order 9, rule 13, C . P. C .
3. During the pendency of the appeal an application i,e, Civil Miscellaneous No,230/C of 1998 was filed by an intervenor i,e, Zaka-udDin Sheikh son of Faqir Muhammad Sheikh under Order I, rule 10, C.P.C. For impleadment as respondent claiming to be assignee of the impugned judgment and decree from the respondents. On 11-6-1998 he was allowed to be added as respondent No,3 in the present appeal.
4. Learned counsel for the appellants contended that Order, dated 16-10-1996 was incorrectly and illegally passed by the learned Civil Judge as upon contumacious non-payment of court-fee by the respondents on their plaint, appellants filed an application for rejection of the said plaint under Order VII, rule 11, C.P.C. Whereupon court-fee of Rs,34,000 was paid by the respondents on 18-9-1996 when the case was adjourned to 5-10-1996 for appellants' written statement. It was urged that just from 5-10-1996 to 13-10-1996 and then case was adjourned to 17-10-1996 for filing written statement by appellants. An instead the case was incorrectly, listed and taken up on 16-10-1996 when closing appellants' right to written statement, the impugned decree was pronounced. Since no one appeared for appellants on 16-10-1996 owing to above-stated bona fide confusion as to dates, therefore, considering the decree to be ex parte, appellants promptly filed an application under Order 9, rule 13, C.P.C. Immediately on coming to know of the decree, on 17-10-1996. And that this application was diligently and honestly prosecuted/pursued by the appellants when the same was dismissed by the learned Civil Judge on 15-1-1997 without holding any inquiry and without any evidence regarding appellants consistent plea of absence on 16-10-1996. And that instead of prolonging the said controversy, the appellants filed the present R.F.A. To challenge the original decree and sought condonation of delay of the time spent before the learned Civil Judge in pursuing the above-said application. It was further stated that it was owing to the confusion of date i,e, 16-10-1996 and 17-10-1996 that the appellants were unable to file the written statement, hence, their suit has been wrongly decreed and they are entitled to contest the same on merits.
Reliance thereto was placed upon Sardar Sakhawatuddin and 3 others v. Muhammad lqbal and 4 others 1987 SCM R 1365, The Secretary Board of Revenue, Punjab, Lahore and another v. Khalid Ahmad Khan 1991 SCMR 2527, and Sherin and 4 others v. Faza Muhammad and 4 others 1995 SCM R 584.
5. Contrarily, learned counsel for respondent No,3 argued that the impugned order under Order VIII, rule 10, C.P.C. And consequent decree was correctly passed in presence of the learned counsel for the appellants on 16-10-1996 as the appellants had despite numerous opportunities, adjournments and imposition of cost, failed to submit the written statement and owing to the presence of learned counsel for the appellants on 16-10-1996, the appellants are also not entitled to condonation of delay. Reliance was placed upon Mst. Hakumat Bibi v. Imam Din and others PLD 1987 SC 22, The Traders Bank Ltd. v. Avtar Singh AIR 1988 Delhi 55, Satya Narayan Sah v. Brij Gopal Mundra AIR 1991 Pat. 60, Shah Muhammad v. Ghulam and another PLD 1970 SC 196 and Bashir Ahmad v.
Muhammad Sharif and 4 others PLD 2001 SC 228. It was also canvassed that if concurrent remedies were available including an appeal, non-filing of an appeal has been held to be fatal to the rights of the appellants and the High Court an itself examine the defence of the appellants to assess the viability of granting an opportunity of written statement in terms of law laid down in Sheikh Abdul.
Hamid v. Khurshid Ahmad 1993 SCM R 1071 and Azad Hussain v. Haji Muhammad Hussain PLD 1994 SC 874.
6. We have considered the submissions of learned counsel for the parties and the record placed alongwith the appeal by the parties, who state that entire case record has been filed with the appeal, therefore, absence of the lower Court file will not prejudice the case of any party.
7. It is an admitted fact that respondent No,1 filed a suit for specific performance and permanent injunction against the appellants without . Payment of court-fee. Whereupon appellants filed an application under Order VII, rule 11, C.P.C. For rejection of the plaint. The learned Civil Judge directed respondent No,1 to pay the requisite court-fee which was paid on 18-9-1996. The order-sheet shows that on 18-9-1996 the case was adjourned in a routine manner to 5-10-1996 for written statement of the appellants. Another order of routine nature was passed that "written statement is not ready, last and final adjournment is granted to 13-10-1996 by extending the previous order". On 13-10-1996, another order was passed in terms,that 'written statement is not ready. Subject to payment of costs of Rs,100, another adjournment is granted on 16-10-1996 in tension of previous order". On 16- 10-1996 presence of learned counsel for the parties was marked in usual routine by recording that Order, dated 16-10-1996 further proceeds that `written statement is not ready --- defendants (appellants) have throughout failed to enter written statement despite being given last opportunity on 5-10-1996 an imposition of costs on 13-10-1996 and even on 16-10-1996 defendants had failed to submit written statement and no reasonable explanation has been presented thereto, where for, defendants/appellants' right to defence is closed under Order VIII, rule 10, C.P.C. And suit is' decreed in favour of plaintiffs/respondents with costs.
8. The above-stated narration of orders clearly reflects that the appellants/defendants were never specifically "required" by the Court to file their written statement, through a conscious and explanatory direction thereto. Instead the case was adjourned three times for submission of.
Written statement in a routine manner. Despite warning of last and final opportunity and imposition of costs respectively on 5-10-1996 and 13-10-1996, the learned Civil Judge did not categorically require from the appellants a written statement to justify imposition of penalty under Order VIII, rule 10, C.P.C. By closure of appellants' right. Furthermore, under proviso to rule 1 of Order VIII, C.P.C, the period allowed for filing written statement is prescribed in terms that such period "shall not ordinarily exceed 30 days". The proviso read with the penal provisions of rule 10 of Order VIII can only mean that upon requirement of written statement by the Court the maximum time (unless extended by the Court) shall be 30 days. Conversely, it also means that the period of 30 days shall not ordinarily be reduced by the Court. In the present case is was on 18-9-1996 that the case was fixed for filing of written statement by the appellants and the right to file the same under Order VIII, rule 10, C.P.C. Was closed on 16-10-1996 i,e, within a period of 28 days. It appears that the learned Civil Judge was not even conscious of the fact that he was restricting and reducing the period of 30 days to a period of 28 days by depriving the appellants of their right to file written statement through order, dated 16-10-1996 which obviously cannot be approved. The learned. Civil Judge had neither specifically required a written statement nor did he allow a time of 30 days to the appellants to submit . Their written statement.
9. Furthermore, there is another intriguing aspect of this case that despite specific plea of the appellants that suit on 13-10-1996 was adjourned to 17-10-1996 and not to 16-10-1996 when the impugned order under Order VIII, rule 10, C.P.C. Was passed and that despite absence of appellants and their counsel on 16-10-1996, their presence had been . Marked in a routine manner i,e, without particularizing the learned counsel and their parties before the Court. It was on this basis that appellants genuinely presuming the case to have proceeded ex parte against them, filed an application under Order IX, rule 13, C.P.C. The learned Civil Judge did not hold any inquiry to determine as to whether there did exist bona fide confusion regarding the date or not and whether the learned counsel for the appellants was present before the Court on 16-10-1997 or not. Instead the learned Civil Judge proceeded to dismiss appellants' application under Order IX, rule 13, C.P.C.
By order, dated 15-1-1997 through cryptic observations that "this is not an ex parte decree and it is a final judgment and final decree. The same cannot be set aside under Order IX, rule 13, C.P.C." as ex parte and the same is appealable order". Had an inquiry been held and evidence been taken, the learned Civil Judge may have come to the conclusion that no one appeared on 16-10-1996 on behalf of the appellants and they had been proceeded against in their absence. Application under Order IX, rule 13, C.P.C. Would then be entertainable. Further, if the appellants were really absent on 16-10-1996, the only possible order that could have been passed against them was that of ex parte proceedings and not striking out their defence under Order VIII, rule 10, C.P.C. Examination of impugned order, dated 16-10-1996 does at least reveal that no request for extension of time was made and no explanation or defence against an action under Order VIII, rule 10, C.P.C. And pronouncement of decree, was offered by the appellants. It was this not so recorded by the learned Civil Judge. In absence of any request for extension or explanation to or non-submission of written statement, the learned Civil Judge surprisingly proceeded to observe that:-- "No reasonable explanation for further adjournment now has been presented."
' In fact no explanation seems to have presented either reasonable or unreasonable by the appellants otherwise the learned Civil Judge would have recorded the same and then rejected it as unacceptable by giving his reasons thereto. Conspicuous absence of such recording does at least fortify the plea of appellants that no one had appeared on their behalf on the fateful day.
Under these circumstances the case of petitioners falls more within the ambit of judgment of Honourable Supreme Court of Pakistan in the case of Sardar Sakhawatuddin and 3 others v.
Muhammad Iqbal and 4 others 1987 SCM R 1365 than in the circumstances of the judgment in the case of Mst. Hakumat Bibi v. Imam Din and others PLD 1987 SC 22. The Honourable Supreme Court of Pakistan in the above-referred case of Sardar.Sakhawatuddin held that:-- "It is clear from the combined reading of rules l and 9 that amongst others three types of written statements can be filed by . Defendant.
(1) As a 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 by the 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.
' As it is a penal provision it will have to be strictly construed. Hence wherever a reasonable doubt arises regarding its interpretation or implementation, it shall have to be resolved in favour of the victim of its application. Otherwise too, its requirements would have to be established like those of Order XVII, rule 3 which is similarly penal in nature. See Industrial Sales and Service, Karachi and another v. Archifar Opal Laboratories Ltd., Karachi PLD 1969 Kar.
418....
'All the three types of written statement mentioned earlier do not entail penal consequences.
Therefore, it should always be absolutely clear from the proceedings that the written statement on account of which penalty is sought to be imposed were 'required' by the Court. It was neither as 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 realizing 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'."
' The Honourable Supreme Court of Pakistan re-affirmed the above view in the case of The Secretary, Board of Revenue, Punjab, Lahore and another v. Khalid Ahmad Khan 1991 SCMR 2527 holding that:-- "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."
10. In view of the above, we have no reservation that the impugned order, dated 16-10-1996 and the impugned judgment and decree passed by the learned Civil Judge, Lahore deserves to be set aside provided appellants' case for condonation of delay under section 5 read with section 14 of the Limitation Act is made out qua the entertainment of the . Present appeal.
11. Learned counsel for the respondents has placed reliance on the cases bf Bashir Ahmad v.
Muhammad Sharif and 4 others PLD 2001 SC 228, Ghulam Ali v. Akbar alias Akoor and another PLD 1991 SC 957 and the case of Shah Muhammad v. Ghulam and another PLD 1970 SC 196 to contend that:--
(i) wrong advise of the counsel and ignorance of law is not a valid ground for, condonation;
(ii) mistaken advice to adopt incorrect course of action and legal remedy is not a prosecution in good faith or with due diligence to allow the benefit of exclusion of time upon the principles of section 14 of the Limitation Act while considering condonation of delay under section 5 thereof; and
(iii) upon failure on merits in application under Order IX, rule 13, C.P.C. For setting aside an ex parte decree, time spent in prosecuting such proceedings cannot be deducted under section 5 from time allowed in filing an appeal as section 14 of the Limitation Act has no application to exclusion of time for appeals.
12. We are afraid that the above specific principles laid down in the referred cases are of no help to the case of the respondents in the peculiar circumstances of the present case.
13. As observed in foregoing paras. The appellants genuinely believing that they had been proceeded against ex parte on 16-10-1996, filed an application under Order IX, rule 13, C.P.C. To seek setting aside of the ex parte decree. The learned Civil Judge held no inquiry to determine as to whether appellants were really absent on 16-10-1996 and had been incorrectly marked as present through their counsel and was there any confusion qua the dates. Instead the learned Civil Judge upon a blank observation without reasons that the decree, dated 16-10-1996 was a final decree and not an ex parte decree, dismissed appellants' application to hold that the said order/judgment/decree was appealable. As such appellants' application under Order IX, rule 13, C.P.C. Was not decided on merits, whereupon appellants instead of continuing to prosecute the uncertain course of litigation in challenging order, dated. 15-1-1997, preferred to file the present appeal against the original order/judgment/decree, dated 16-10-1996. Furthermore, the application under. Order IX, rule 13, C.P.C. Was diligently filed on 17-10-1996 upon claimed knowledge and,was so prosecuted. It, therefore, cannot be said that appellants did not pursue the same in good faith and diligently. Since no inquiry whatsoever was held by the learned Civil Judge upon B appellants'. Plea in the said application regarding their absence on 16-10-1996 and confusion of the date, therefore, it cannot be said with reasonable certainty that the legal course, adopted by the appellants was on the basis of a wrong or mistaken legal advice. Under these circumstances, learned counsel for the appellants correctly and justifiably relied upon the judgment of Honourable Supreme Court of Pakistan in the' case of Sherin and 4 others v. Fatal Muhammad and 4 others 1995 SCM R 584 wherein it was held that:-- "Not unoften, while examining the question of condonation of delay, in filing the appeal, the Courts have been invoking the principles underlying section 14 of the Act. The High Court has declining to condone the delay entirely on the touchstone of section 14. It is, however, to be remembered that expression `due diligence' and 'good faith' appearing in section 14 do not figure in section 5. The condition prescribed in the latter section for its applicability is 'sufficient cause' but what is sufficient cause is not capable of connotation, with exactitude and would differ from case to case.
We may observe that filing of appeal in a wrong Court on account of mistaken advice tendered by the counsel oanvassed on behalf of the appellants for condonation of delay by itself would not attract section 5 but when the litigant and the counsel have acted with due care and caution and under their conduct does not smack of negligence, the institution of the appeal in the wrong forum may constitute a 'sufficient case' within the meaning of section 5 of condonation of the delay'.. `Evidently, the learned 1st Appellate Court held up the appeal for a period of over 10 months in discovering that it had no jurisdiction and that the appeal should have been filed in the High Court.
The appeal instituted in the District Court was well within time. The period of limitation for filing the appeal in the High Court is 90 days. It is important to note that when the appeal was instituted in the District Court a period of more than two months was available to the appellants for filing the same in the High Court. Had the learned District Judge applied his judicial mind to the record before him; attended to the value of the appeal for jurisdictional purpose and returned the memorandum of appeal to the appellant, without undue delay, he could have easily refiled it in the High Court within the period of limitation."
14. In view thereof we allow appellants' application under section 5 of the Limitation Act and condone the delay in filing the present appeal. Furthermore, as observed above, accepting this appeal we set aside the impugned order/judgment/decree, dated 16-10-1996 passed by the learned Civil Judge, Lahore, who is directed to decide the suit within 5 months, after reconstruction of the suit record within one month. The parties shall appear before the.Learned Civil Judge on 27- 11-2001. There shall, however, be no order as to costs.