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Civil Revision No. 1368 of 1983, decided on 2nd July, 1986.
(a) Civil Procedure Code (V
or 1908)‑
‑ S. 80 & O. VIII, R. 1 ‑ Filing of written statement‑Requirements‑Defendant after service of summons could appear to make request for adjournment for filing of written statement‑Nothing adverse, held, could be ordered against such defendant until period for filing written statement was exhausted ‑ Summons being for filing written statement, same could not be denied merely because nobody turned up on behalf of defendant on date of hearing. Taking of ex parte proceedings within statutory tithe allowed for filing of written statement would amount to foreclosing defendants right to file written statement.
Islamic Republic of Pakistan through Secretary, Ministry Finance, Government of Pakistan, Islamabad v. Messrs Babar and Company 1984
C L C 1535 rel
(b) Civil Procedure Code (V of 1908)‑
O. VIII, R. 1‑Act of filing written statement and non‑appearance after service of summons ‑Distinction‑Summons is not only for appearance but is always either for framing issues or final disposal When it is for framing of issues, it presupposes the filing of written statement‑Where summons received by defendant was for framing issues. period of ninety days has to be given to file written statement wherefrom issues were to arise.
(c) Civil Procedure Code (V of 1908)‑
‑‑ S. 80 & O. IX, R. 6‑Expression "hearing", connotation of Expression "hearing" used in O. IX, R. 6, Civil Procedure Code, held, would mean receiving written statement which to terms of proviso to S. 80, C. P. C. compulsorily required period of ninety days.‑[Words and phrases].
(d) Civil Procedure Code (V of 1908 ‑
‑‑ S. 115 ‑ Revisional jurisdiction, . exercise of ‑ Ex parte proceedings were taken against defendant without affording him opportunity to file written statement within 90 days‑High Court in exercise of revisional jurisdiction set aside order of Trial Court by remanding case thereto directing same to be decided in accordance with law after receiving written statement.
Sh. Maqbool Ahmad, Standing Counsel for Petitioner.
Zafar Iqbal Bajwa for Respondents.
Date of hearing : 1st July, 1986.
This Civil Revision is directed against an order dated I1‑5‑1983 of the learned Senior Civil Judge, Gujrat, whereby he refused to set aside ex parse proceedings earlier ordered on 21‑7‑1982 against the petitioners Pakistan and her officials being sued in their official capacity.
2. Admittedly no notice under section 80, C. P. C. was given to the petitioners. The suit was filed on 22‑5‑1982 whereas the ex parte proceedings were taken against them on 21‑7‑1982. They applied for setting aside those proceedings urging that in the absence of any previous notice, they were entitled to a period of ninety days for filing written statement and that before the expiry of the same, proceeded against ‑ ex parte. The learned Court that after service of the summons the to make a formal written statement not as a matter of course right to file the written statement.
3. Sh. Maqbool Ahmad‑1I in support of the revision petition placed reliance upon not only section 80, C. P. C. itself but also its interpretation as made in Islamic Republic of Pakistan through Secretary. Ministry of Finance, Government of Pakistan, Islamabad v. Messrs Babar and Company (1984 C L C 1535) wherein it was observed that the period of ninety days had to be given to the State for filing written statement as a matter of obligation and that before its expiry, ex parse 'proceedings could not be ordered against it. A bare persual of section 80, C. P. C. supports the contention canvass ed' on behalf of the petitioners, of course, after service of the summon the Federation or the Province may appear through an authorised agent to make a request for adjournment for filing written statement, yet nothing adverse could be ordered against them until the period for filing written statement was exhausted. In fact, the summons being for filing written statement, the same could not be denied merely because nobody turns up on behalf of such a defendant on the date of hearing. Taking of e parse proceedings amounts to foreclosing the defendant's right to file written, statement. Obviously if the Legislature in its wisdom has allowed ninety days for filing the same, to deny it or to foreclose it for the defendant's failure to appear is indeed against both the spirit as also the letter of section 80, C. P. C.
4. Mr. Zafar Igbal for the respondent tried to draw distinction between the act of filing written statement and the non‑appearance after service of summons. I do not think such a subtle difference is at all sustainable. The summons is not only for appearance but is always B either for framing issues or final disposal. When it is for framing issues, it presupposes filing of written statement. In this case since the summon received by the petitioners was for framing issues, they had to be given period of ninety days to file written statement wherefrom the issues were to arise.
5. The expression "hearing" contemplated in Order IX, rule 6, C. P. C. in the context meant nothing but receiving written statement which in terms of the proviso to section 80, C. P. C. compulsorily required a period of ninety days. There is little reason to concentrate only upon failure to appear. The appearance essentially was for the purpose of "hearing" which in turn was nothing else than filing written statement in the prescribed period of ninety days. In other words, the "hearing" could not be taken up before the expiry of the said period unless the defendant‑Federation or the Province files the written statement earlier. The impugned order seems to overlook the interaction of these provisions and could not be sustained in law.
6. As a result the revision petition is accepted and the impugned order is set aside. The trial Court will decide the case afresh in D accordance with law after receiving written statement, etc. The parties are directed to appear before it on 25‑7‑1986.
A. A. Revision accepted.
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