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Civil Revision No. 1560 of 1981, decided on 9th December, 1981.

0. VIII, r. 10‑Pleadings‑Written statement‑‑Defendant, despite several adjournments given for purpose, failing to file written state ment‑Trial Court deciding to adopt first course, open to him, of pronouncing judgment‑Held, trial Court, in such case, not obliged to record evidence before pronouncing judgment.‑[Pleadings].

Dr. Abdul Basit for Petitioner.

The respondents, Messrs Lufthansa German Airlines, filed a suit against the petitioner, Ghulam Nabi Lone, for recovery of Rs.42,407.75. The petitioner, who was defendant in the suit, was given several adjournments for filing of written statement but in vain. The suit was, therefore, decreed against him; under rule 10, Order VIII of the Code of Civil Procedure. The appeal preferred by the petitioner had also failed. He has, therefore, come up in revision to this Court.

2. It was urged by learned counsel for the petitioner that the learned trial Court could not pronounce judgment against the petitioner without recording evidence in the case because it was not possible to pronounce judgment in the absence of evidence. 'in this connection much stress was laid by him on the words "pronounce judgment" appearing in rule 10 of Order VIII of the Code of Civil Procedure.

3. Rule 10 reads as follows :‑

"10. Procedure when party fails to present written statement called for by Court.‑Where any party from whom a written statement is so required fails to present the same within the time fixed by Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."

4. It is clear from the provisions of rule 10 that when the defendant fails to put in written statement, two courses are open to the Court. One of these courses is to decide the suit forthwith and the other is to make such order as thinks fit. If the pronouncing of judgment is to depend on the recording of evidence it would not be possible to pronounce judgment immediately on the failure of the defendant to submit his written statement. Acceptance of argument of the learned counsel would, therefore, have the effect of taking away from the trial Court the power of deciding the suit as soon as there is default on the part of the defendant in the matter of filing his written statement. Needless to say that if the trial Court is divested of that power it would amount to defeating legislative intent in disregard of the established rules of interpretation.

5. I am conscious of the position that rule 10 does not stop the trial Court from recording the plaintiff's evidence despite the defendant's failure to present written statement. This, however, the Court can do if it choose to adopt the second course of making "such order as it thinks fit". It was discretionary with the trial Court to adopt either of the two courses referred to above and since it had decided to resort to the first one, that is on pronouncing judgment, it is not possible to hold that even while adopting that course the learned trial Court was obliged to record evidence.

6. In view of the above discussion, I am unable to accept the proposi tion put forth by learned counsel for the petitioner and hold that if the trial Court decides to pronounce judgment under rule 10 it can do so without recording evidence. No legitimate exception can, therefore, be taken to the order under challenge.

7. Resultantly, this petition fails. It is dismissed in limine.

S. Q. Petition dismissed.