Find a Lawyer

First Appeal from Order No.180 of 1983, decided on 30th January, 1984.

---O.VIII, R 10--Defence, striking off--Appellants, legal represen tatives of deceased defendant could not file amended written statement on the fixed date as their counsel could not prepare same due to absence of his steno--Right of defence struck off due to non-filing of written statement--Contention that only one opportunity was granted for filing amended written statement which could not be attributed as delay in proceedings--Held trial Court should not have taken recourse to extreme measure--Court should have as a matter of course granted a further opportunity subject to cost as it was not a case of frequent adjournments on a particular cause.

Muhammad Anwar Warraich for Appellant.

Taufeeq Ahmad Qureshi for Respondents.

Date of hearing: 30th January, 1984.

This first appeal is directed against an order dated 11-6-1983 of Mr. Khalid Rasheed, Civil Judge, Lahore whereby he closed the right of the appellants for filing an amended written statement.

2. Briefly the facts are that the respondents instituted a suit for partition of certain property and compensation as to the use and occupation thereof against the predecessor-in-interest of the present appellants. The predecessor-in-interest of the appellants died on 19th August, 1982, so the appellants were brought on to the record as his legal representatives. They were served for 10-5-1983. The case was adjourned to 11-6-1983, on which date the appellants were to file their amended written statement. On the date so fixed the learned: counsel for the appellants submitted to the learned trial Court that the required amended written statement could not be prepared since the steno of the learned counsel had not turned up on which the learned trial Court observed that could hardly be treated as a reasonable ground for non-compliance of the order.

3. The learned counsel for the appellants has contended that only one opportunity was granted for filing the amended written statement, so the appellants cannot be attributed any delay in the proceedings of the case which has certainly prevailed with the learned trial Court so as to close the right of filing the amended written statement. That a true and straight cause for non-filing of amended written statement was put before the learned Court but the learned Court without any appreciation of the difficulty of the learned counsel for the appellants passed the impugned order. The appellants were to file an amended written statement in answer to a detailed plaint.

4. The learned counsel for the respondents while resisting this appeal has addressed that the learned trial Court was justified in acting under Order 8 Rule 10 C.P.C., because the date was specifically fixed for the amended written statement and the reason furnished by the counsel for the appellants in failing to file the same was rightly not regarded as satisfactory by the learned trial Court. It was to save the case from an unnecessary delay that a further opportunity was not granted to the appellants.

5. In the circumstances of this case suffice it to say that the learned trial Judge should not have taken recourse to an extreme measure. He should have as a matter of course granted a further opportunity subject to the costs as it was not a case of frequent adjournments on a particular cause. This appeal is accepted and the order of the learned trial Court is set aside. The appellants are to be provided with an opportunity to file their amended written statement subject to Rs.300 as costs as agreed upon, which amount is to be paid by the appellants to the respondent before the amended written statement is filed. The parties are to appear before the learned trial Court on 12-2-1984.

/3039/L Case remanded.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.