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Civil Revision No. 165/D of 1930, decided on. 10th February, 1980.

----- O. VIII, r. 10-Failure to file written statement-Contention that written statement net filed as copy of plaint not given to defendant- Such contention neither raised before appellate Court nor order of trial Court supporting same--Suit against defendant, for not filing written statement, held, rightly decreed in circumstances of case [Abdul Qadoos v. Abdur Rehman P L D 1970 Azad J & K 21 geld not applicable.

Abdul Qadoos v. Abdur Rehman P L D 1970 Azad J & K 21 held not applicable.

Mian Muhammad Yaqoob for Appellant.

This Civil revision has been filed to call in question a decree passed against the petitioners, Muhammad Rahmzan and nine others, under Order VIII, rule 10 of the Code of Civil procedure, in a suit, for their failure to file written statement in compliance with the direction of the Court which was seized of the suit. The judgment and decree of the trial Court was challenged by the petitioners by means of an appeal which was dismissed. Hence this revision.

2. Learned Counsel for the petitioners contended that the petitioners were not-provided with copy of the plaint and therefore, the suit against them could not be decreed on, the basis of provisions of Order VIII, rule 10. He relied on Abdul Qadoos v. Abdur Rehman (P L D 1970 Azad J& K 21) to support iris contention.

3. The plea advance by the learned counsel is an afterthought inasmuch as it was not raised in the grounds of appeal filed before the learned appellate Court. The position taken by the petitioners before the said Court was that it was their counsel who was to blame for not filing the written statement. There is also no substance in the plea now raised before me inasmuch as in none of the orders of the trial Court, which have been read out to me by the learned counsel, from his brief, there is any mention of tire fact that the copy of the plaint had not been supplied to the petitioners. In the case of Abdul Qudoos relied upon by the learned counsel the plaintiffs had made an application to the trial Court stating that the copy of the plaint had not been made available to them and on that application the trial Court had directed that the copy of the plaint shall be 'supplied to the defendants. Admittedly, no such application was made in the case in hand. With a view to taking the benefit of the cited case the petitioners should have proved as a fact, that the copy of the plaint had not been supplied to them but they had failed to do so. The law laid down in the cited case is, therefore, not attracted to the case in hand.

4. No other point was canvassed by the learned counsel.

5. The petition is, therefore, dismissed in limine:

M A. K. Petition dismissed

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