1

W.P.No.524 /06.

Shabbir Ahmad

Mst. Farzana Farid etc.

24.03.2010. Malik Imtiaz Mahmood, Advocate for the petitioner.

Mr. Tariq Mahmood Khan, Advocate for respondent No.1.

This writ petition is an old matter lingering

on since, 2006. With the concurrence of both the
parties this will be decided as “PAKKA” case.
Briefly stated facts of the suit are that Mst.
Farzana respondent No.1/plaintiff had filed a suit
for specific performance of the contract against
the petitioner/defendant Shabbir Ahmad and
during the pendency of suit the right of filing
written statement of petitioner/defendant was
closed by the trial Court vide order dated
03.10.2005, against which an application for
setting aside proceedings dated 03.10.2005 was
filed but was dismissed. Aggrieved thereby, the
petitioner/defendant filed a revision petition,
which has also been dismissed by the learned
Additional District Judge, Khanpur, vide order
dated 03.02.2006; hence, this writ petition.

2. Learned counsel for the petitioner argued

that the learned trial Court was not justified in
striking out the defence of the petitioner and
similarly his revision was also illegally dismissed
and the Appellate Court has not exercised the
jurisdiction vested on it. Relied upon the
judgments reported in PLD 2006(Lahore) 18,

PLD 2002 SC 630 & PLD 2002 SC 491.

3. On the other hand, learned counsel for the

respondent/plaintiff contends that both the
Courts below have passed the orders in
accordance with law. No illegality or irregularity
 2

has been committed. The petitioner was granted

opportunities to file written statement but he did
not bother to file the same; hence, the trial Court
had no alternate except to strike of the defence of
petitioner and it can not be interfered with in writ
jurisdiction.

4. Heard. Record perused.

5. The use of word “required” in Order VIII

Rule 1 CPC is of most significance. It does not
permit a routine order without application of
mind to the “requirement” and all the need.
Therefore, it is essential that whenever a written
statement is to be made subject to penal Order
VIII 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 implication. Where 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 could not
satisfy the law regarding the “requirement” of the
Court. It is the only written statement which is
required and that too by the Court by a speaking
order, which would entail the penal consequences
of Order VIII Rule 10. In the case before the Court
it is admitted position that these “requirements”
had not been fulfilled. When “required” written
statement had not been filed, two alternatives
were before the trial Court namely the
pronouncing of judgment forthwith or making of
such other orders though it was discretionary
with the Court to apply penal provisions Rule 10
of Order VIII and pronounce the judgment even
without recording the evidence but such
 3

judgment should be on the basis of facts before it.

Punitive action should only be taken in severe
circumstances. Court in the alternative award
costs and grant an adjournment or proceed to
record evidence ex-parte and then pronounce the
judgment. Rationale behind all discussion is that
the defendant should not be deprived of putting
forward his summary of defence. In this case, as
earlier discussed, punitive action for non filing of
written statement should only be taken in very
extreme circumstances. Case in hand does not
show that last opportunity was given to the
defendant to file written statement and written
reply; hence, this Court has the supervisory
jurisdiction under the Constitution of Islamic
Republic of Pakistan, 1973. Moreover, as the trial
Court and the Revisional Court did not exercise
the jurisdiction vested on them, I allow the writ
petition and both the orders impugned passed by
the Courts below are declared void, illegal, ab
initio, having no legal effect on the rights of the
petitioner. Trial Court is directed to award one
opportunity of 15 days subject to payment of
costs of Rs.6,000/- to the petitioner to file his
written statement and this will be last and final
opportunity for filing of written statement.
6. The notice issued to the Civil Judge vide
order dated 13.03.2006, considering his
explanation, is withdrawn. However, he shall
remain more careful in future.

(MUHAMMAD QASIM KHAN)

JUDGE

Gulzar

APPROVED FOR REPORTING.

JUDGE