IN THE HIGH COURT OF
SINDH AT KARACHI
SUIT NO.340/2013
Plaintiff : M/s. Skyword (Pvt) Ltd,
Through
Mr. Khawaja Shamsul Islam,
advocate.
Defendants : Salahuddin and others,
Through Mr. Jamshed Malik, advocate
for defendants No.1 to 3.
Mr. Muhammad Haseeb Jamali advocate for defendants No.4 and 5.
Mr. Sarfraz Ali Metlo,
advocate for defendant No.7,
Mr. Ameeruddin advocate for defendant
No.8.
Date
of hearing : 14.04.2015.
Date
of announcement: 28.04.2015.
Through instant CMA
No.13951/2014, the defendants No.4 and 5 seek recalling of order dated
26.08.2014 passed by Additional Registrar (OS) whereby they were debarred from
filing written statement.
2. At the outset learned
counsel for defendants No.4 and 5 contends that after service defendants
engaged counsel; filed counter affidavit against injunction application but
cause list of Additional Registrar (OS) was not provided to the counsel of
defendants with regard to date of 28.06.2014 for filing of written statement
which resulted in absence followed by an order of their declaration as ex
parte; non-filing of written statement, was neither willful nor deliberate.
Defendants were contesting instant suit diligently. They filed instant
application on 26.10.2014 with two months delay after passing ex parte
order but such delay was not deliberate and since valuable rights of defendants
are involved in the subject matter therefore it would be in the interest of
justice to take on record the written statement filed by them. In support of
his contention he has relied upon 1998 CLC 1399, 1990 CLC 1078, 1992 MLD 2026,
1987 SCMR 1365, 2003 CLC 1139, and 1989 CLC 625.
3. In-contra,
learned counsel for plaintiff vehemently opposed instant application on the
plea that under Order 8 Rule 10 CPC defendants were required to file written
statement within one month after service upon them. It is matter of record that
they were served, they filed counter affidavit, hence non-filing of written
statement is apparently negligence on their part and such negligence, if it is
claimed by their counsel, plaintiffs shall not suffer and this Court is
required to act strictly in accordance with law. He further contends that even
application under section 5 of the Limitation Act is not filed though section 3
of the Act categorically demands that any issue of limitation shall be
taken by the Court; rule 159 of the Sindh Chief Court Rules is procedural
whereas penal clause is available in CPC which is substantive law hence instant
application is devoid of merits.
4. Heard
learned counsel, perused material available on record.
5. There
can be no denial to the well established principle of
law that law leans adjudication on merits and rules of procedure are meant to
advance justice and preserve rights of litigants hence they be not interpreted
in a way as to hamper the administration of justice. This position stood
further affirmed rather insisted by insertion of the Article 10-A in the Constitution
under title of ‘fair trial’ . The term ‘fair
trial’ shall always require adjudication on merits by allowing the parties
unless there are exceptional circumstances justifying resort to penal
consequences on failure of the party in following procedural law. The Order VII
of the Civil Procedure Code is procedural one which is aimed to compel the
defendant to file his pleading (written statement) within period, provided by
the procedure but the failure thereof (procedure) should not normally be
used as a sword to deprive the defendant from his valuable right to say his
case which, otherwise, is in line with universal principle of ‘no body should be condemned unheard’. The status and
the application of the Order VII of the Code is ‘procedural’ one, as
held in the case of Kailash v. Nanhku
& others ( (2005) 4 SCC 480 ( AIR 2005 SC 2441) , reaffirmed in case,
reported as 2013 SCMR 137 (Supreme Court of India)
Holding therein that:
“The purpose of providing the time schedule for filing the
written statement under Order VIII, rule 1, CPC is to expedite and not to
scuttle the hearing. The provision spells out a disability on the defendant. It
does not impose an embargo on the power of the court to extend the time. Though
the language of the proviso to Rule 1, Order VIII, C.P.C.
is couched in negative form, it does not specify any penal consequences flowing
from the non-compliance. The provision being in the domain of the
procedural law, it has to be held directory and not mandatory. The
power of the court to extend time for filing the written statement beyond the
time schedule provided by Order VIII, Rule 1 C.P.C. is not completely taken
away”
(Underlining has
been supplied for emphasis)
Further, the penal consequences, arising
out of said procedural law, are directory in nature and not mandatory which is
evident from the use of the word ‘may’ in the
Rule-10 of the Order-VIII of the Code.
6. Further, it is also equally well
settled principle of law that before resorting to penal consequences, the same
has to be construed strictly and any doubt arising out of the pleaded
circumstances the same has to be resolved in favour of the party, victim or
likely to be a victim of such penal consequences. Reference can be made to the case
of Sakhawatuddin v. Muhammad Iqbal
(1987 SCMR 1365) wherein it was held:-
‘As it
is 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.’
It was further held that:
“…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 implication. 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.”
7. It
is settled principle of law that for declaring one as ex parte shall not
take away his right of participation in the proceedings as held in the case
of POLICE DEPARTMENT V. JAVED ISRAR
(1992 SCMR 1009) that :
‘Defendants who had
been proceeded against ex parte can take part in the subsequent proceedings as
of right’
8. In the instant matter the defendant
has taken plea of non-supply of cause list and even the written statement has
been filed with application in hand therefore, it would not be in the safe
administration of justice to deprive the defendant from legitimate right of ‘fair
trial’ on mere technicalities particularly when benefit is legally to
be given to the defendants. Accordingly, instant application is hereby allowed.
The written statement, already filed, be brought on
record.
Announced in open court this 28th day of April, 2015.