ORDER SHEET

Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Suit No. 1397 of 2010

Date	Order with signature of Judge

Mr. Salahuddin Ahmed, advocate for the plaintiff.

Mr. Khalid Jawed Khan, advocate for defendants 1 to 8 and 11.

Date of hearing : 29.10.2015.

ORDER ON C.M.A. No. 6698 OF 2013

NADEEM AKHTAR, J. – Through this application filed by defendants 1 to 8 and 11 under Rule 159 of the Sindh Chief Court Rules (O.S.), they have prayed that they may be allowed to file written statement in the instant Suit.

2. The facts relevant for the purposes of this application are that the instant Suit was filed by the plaintiff on 07.09.2010 for declaration, permanent injunction and damages against twelve (12) defendants. As summons issued to the defendants had returned served, four weeks’ time was granted to them on 14.01.2011 by the Additional Registrar (O.S.) to file their written statements. On 18.03.2011, two weeks’ further time was granted for this purpose, and on 26.05.2011, further two weeks were allowed to them as last chance. On 31.05.2011, defendants 1 to 11 were debarred by the Additional Registrar from filing written statements.

3. Mr. Khalid Jawed Khan, learned counsel for defendants 1 to 8 and 11, contended that the Additional Registrar was not justified in debarring the said defendants on 31.05.2011 when two weeks’ time was granted by him on 26.05.2011 to the said defendants to file their written statements. He further contended that the time granted by the Additional Registrar was due to expire on 09.06.2011, and as such the said defendants could not have been debarred on 31.05.2011. He submitted that the said order on the face of it is illegal due to this reason. It was urged that the consequences of non-filing of written statement by the said defendants could follow only after 09.06.2011. It was further urged that there was also a possibility that the said defendants could have been granted further time even after 09.06.2011, however, in view of the illegal order passed on 31.05.2011, the said defendants lost their right to apply for extension in time as well as right of hearing. In support of his submissions, learned counsel relied upon (1) Mst. Samina Sohail V/S Humaid Naseer Al-Owais and 2 others, 1989 CLC 1949, (2) Mrs. Naheed and 2 others V/S Mrs. Nafisa Khatoon and another, 1990 CLC 1078, (3) I.B.M. SEMEA SPA LTD. V/S EGS (PVT.) LTD., 1998 CLC 1399, and (4) Raja Rahmat Khan V/S Muhammad Aamir Tastee and 2 others, 2015 YLR 2220.

4. At the very outset, Mr. Salahuddin Ahmed, learned counsel for the plaintiff, submitted that the application is barred by time under Rule 15 of the Sindh Chief Court Rules (O.S.), which provides that any party desiring to have any question which has been decided by the Registrar (O.S.) referred to the Court may apply within eight days from the date of the order complained of or within such further period as the Judge for sufficient cause may allow even after the expiry of the aforesaid period of eight days. He further submitted that no application has been filed by the defendants for condoning the delay in filing the present application which was filed by them after two years of the order passed by the Additional Registrar.

5. In addition to the above, Mr. Salahuddin Ahmed invited my attention to the order passed on 11.05.2011 by a learned Division Bench of this Court in HCA No.287/2010 which had arisen out of the instant Suit. The said appeal was filed by the present plaintiff against the dismissal of his injunction application, wherein he stated that he would not press the appeal if directions are issued to the learned single Judge to proceed with the Suit expeditiously and to dispose it of within a stipulated period. By observing in the aforesaid order that such proposal of the plaintiff / appellant was reasonable and was not seriously opposed by the learned counsel for the defendants / respondents, the appeal was disposed of by the learned Division Bench by requesting the learned single Judge to immediately start the proceedings of the Suit, conduct it expeditiously and dispose it of preferably within a period of six months from the date of reopening of the Court after summer vacations. It was contended by Mr. Salahuddin Ahmed that withdrawal of the appeal by the plaintiff was subject to the condition that this Suit will be decided expeditiously within a specified time frame, and such direction was specifically given by the learned Division Bench. It was submitted by him that despite the above, the present application and written statement were filed by the defendants on 13.05.2013, that is, after more than two years of the order passed by the learned Division Bench and after about two years of the order passed by the Additional Registrar whereby they were debarred. He further submitted that no valid or cogent justification, reasons or grounds have been stated in the application for such a long delay.

6. Learned counsel for the plaintiff further contended that the Suit ought to have been decided expeditiously within the time specified by the learned Division Bench, however, the proceedings have been unnecessarily delayed because of the willful and deliberate delay on the part of the defendants. He submitted that advancement of cause of justice should be the paramount consideration before the Court, and there has to be a limit for granting time to the defendants to place their defence before the Court. It was urged that such long and unexplained delay cannot be condoned on the ground of technicalities, and such questions should be decided keeping in view the facts and circumstances of each case and the conduct of the parties therein. In support of his submissions, Mr. Salahuddin Ahmed relied upon (1) Mst. Hukumat Bibi V/S Imam Din and others, PLD 1987 S.C. 22, (2) Azad Hussain V/S Haji Muhammad Hussain, PLD 1994 S.C. 874, (3) Allah Bakhsh V/S Additional District Judge-I, D. I. Khan and 2 others, 2005 CLC 1422, (4) Societe Des Produits Nestle S.A. through Vice-President V/S Rafique Sweets through Proprietor and 4 others, 2000 CLC 1045, (5) Abdul Rehman V/S Pervez Ahmed Butt and 2 others, PLD 1982 Karachi 458, and (6) Laique Ahmad Siddiqui V/S The Federation of Pakistan, PLD 1957 (W.P.) Karachi 54.

7. I have given due consideration to the submissions made by the learned counsel for the parties and have also examined the material available on record and the law cited at the bar. I have noticed that the order dated 11.05.2011 was passed by the learned Division Bench in the presence of the learned counsel for the defendants. Thus, the defendants were fully aware of the direction given by the learned Division Bench for deciding the Suit expeditiously within six months of reopening of the Court after summer vacations. It is an admitted position that despite being fully aware of the above direction, the present application along with the written statement was filed by the defendants on 13.05.2013 after two years of the aforesaid order. It is a matter of record that the application is supported by the affidavit of the Court Clerk of the defendants’ learned counsel and not by any of the defendants. None of the defendants has come forward to explain or justify the reason for not filing the written statement within time or the long delay of two years in filing the present application and written statement. The only reason given on behalf of the defendants is that they could not file written statement due to unavoidable circumstances and non-availability of their officers. With profound respect to the learned counsel for the defendants, if his argument that the order debarring the defendants passed on 31.05.2011 could not have been passed before the expiration of two weeks, is accepted, even then there is no valid justification or explanation on record for not filing the written statement within the time allowed by the Additional Registrar as the last chance to them.

8. It is to be noted that because of the failure on the part of the defendants to file written statement within time, a valuable right has accrued in favour of the plaintiff. It is well-settled that the right accrued to a party in judicial proceedings because of the default committed by the other party, cannot be taken away lightly. In the present case, this principle will apply with full force as no cogent or valid justification, explanation, reasons or grounds have been disclosed by the defendants for such default or delay. Moreover, the direction given by the learned Division Bench on 11.05.2011 cannot be ignored, whereby this Court was to decide the instant Suit expeditiously within six months from reopening of the Court after summer vacations, that is, in the first quarter of the year 2012. I agree with the learned counsel for the plaintiff that there has to be a limit of granting time to a defendant for filing written statement and he should not be allowed indefinite time to file written statement according to his own sweet will or convenience.

9. In view of the above discussion, the application is dismissed with no order as to costs.

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J U D G E