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‑‑ Art. 9 read with Civil Procedure Code (V of 1908), O. VIII, r. 12‑Penalty for non‑filing of address for service‑Objection about non‑filing of address for service taken for first time after about six years of institution of suit and findings of trial Court that 'fard patta' misplaced not appearing to be unjustified‑Imposing of penalty for non‑filing of address for service being discretionary in nature, order imposing penalty upheld, in circumstances.

Shamroz Khan and another v. Muhammad Amin and others P L D 1978 SC89 fol.

Stare v. Muhammad Akbar P L D 1962 Lah. 1 and Gul Bibi's case P L D 1976 Pesh. 108 ref.

Muhammad Khalid AM for Petitioner.

Nemo for Respondent.

Date of hearing : 4th July, 1982.

This writ petition has been filed by Muhib Ali and another (herein called the petitioner) calling in question the order dated 21st June, 1982 passed in appeal by the learned Additional District Judge, Sahiwal, whereby he dismissed the revision petition filed by the petitioners against the order dated 17th June, 1982 passed by Civil Judge 1st Class, Pak pattan Sharif, praying that both the orders mentioned above be declared illegal, void and without lawful authority.

2. The facts giving rise to this petition are that the petitioners filed a suit for possession through pre‑emption in the Court of Civil Judge, Pakpattan which is still pending disposal. During the trial the petitioner filed an application under Order VIII, rules 11 and 12 of the C.P.C. asking for striking out the defence of the respondent on the ground that the respondent/ defendant had failed to file their addresses for service (Fard Patta) with the written statement, therefore, they should be burdened with penal consequences. Learned trial Court looked into the record and observed that the memo. of addresses of service was placed on record but it seems, that the same has been misplaced. It was further observed'' that the defendant‑ has since filed new "Fard Patta" and therefore the application ‑was dismissed. Against this order a revision petition was filed before the learned District Judge which met the same .fate. The learned Additional District Judge while disposing of the revision observed, that 'the words "he shall be liable to have his defence, if any, struck out" appearing in Order VIII, rule 12 have been interpreted to mean that "the Court may strike off the defence in an appropriate case on account of the failure to supply the addresses". Reliance is placed on Shamroz Khan and another v. Muhammad Amin and others (P L D 1978 ‑S C 89).

3. I have heard the learned counsel for the petitioner at some length and also perused the record and the documents appended with the petition. On my inquiry, learned counsel has stated that the suit was filed in the year 1967 and the relevant objection about non‑filing of address for service, for the first time, was taken on 24th May, 1982 i.e. about six years after the institution of the suit. The finding of the trial Court that fard patta "seems to have been misplaced"' in the circumstances of the case does not appear to be unjustified. Again the authority quoted by the learned Additional District Judge in his order is a complete answer 'to the objection raised, wherein it has been held that Order VIII, rule 12 confers discretion rather than to make it incumbent on courts to impose penalty. The earlier contrary view taken by Lahore High Court in State v. Muhammad Akbar (P L D 1962 Lah. 1) was overruled and likewise the view expressed in Gul Bibi's case (P L D 1976 Pesh. 108) was not approved by the Supreme Court.

4. For the foregoing reasons, I am of the view that the discretion exercised by the two courts below is proper and unexceptionable and suffers from no jurisdictional defect. In this view of the matter, I see no merit in the petition and the same is dismissed in limine.

M.Y.M. Petition dismissed.

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