2020 C L C 125
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
SHER ALI KAKAR ----Appellant
Versus
STATION HEAD QUARTERS, through Umair Hameed ----Respondents
Regular First Appeal No. 52 of 2016, decided on 22nd August, 2019.
Civil Procedure Code (V of 1908) ---
----O.VII, Rr. 2 & 11 & O. VIII, R. 10 ---Money Suit ---Defendant had failed to submit
written statement---Effect ---Defendant moved application for rejection of plaint which was
rejected ---Trial Court directed the defendant to s ubmit written statement but he failed and
the suit was ex -parte decreed ---Validity ---Trial Court had granted two opportunities to the
defendant for submitting written statement in his absence ---No ample opportunity was
granted to the defendant to file writ ten statement rather Trial Court pronounced the
judgment forthwith when defendant was not in attendance ---Trial Court was to summon the
defendant and thereafter proceeded with the matter in accordance with law ---Matter was to
be decided on merits rather th an on technicalities ---Impugned judgment passed by the Trial
Court was set aside with the directions to provide fair opportunity to the defendant for filing
written statement and then decide the suit on merits ---Appeal was allowed, accordingly.
Kailash v . Nanhku and others AIR 2005 SC 2441 rel.
Syed Ayaz Zahoor for Appellant.
Syed Iqbal Shah for Respondent.
Date of hearing: 19th August, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ----This appeal is directed against the ex parte
judgment and decree dated 30. 04.2016, ("impugned judgment") passed by learned Civil
Judge -IX, Quetta (the "trial court") whereby suit filed by the respondents for "Recovery of
Damages of Rs.7,69,000/ -" was decreed.
2. Brief facts of leading to file the instant appeal are that the resp ondent/plaintiff filed
the referred suit before the trial court with the averments that the Hutt No.43- C situated at
Ghazni Line Quetta cantt was rented out to the plaintiff for a period of two years with effect from 27.8.2012 to 26.8.2014. On 15.10.2013 a notice was issued by the Head Quarter
Southern Command Quetta Cantonment to the appellant/defendant for vacation of accommodation and also required to clear the entire outstanding amount. The defendant had not vacated the house in question then Head Quart er Southern Command wrote a letter
to the Station Head Quarter and directed to vacate the house in question from the defendant. After receiving the said letter, the Station Head Quarter issued letter to the appellant and requested that more than 60 Army Of ficers are in waiting list for allotment of
accommodation, therefore, Army is unable to allot the residential accommodation to the civilian and requested to please vacate the house in question. In the meanwhile the defendant/appellant appeared before the S tation Commander and requested for grant of
time for vacation of hut in question on 05.12.2014 and defendant/appellant also submitted an undertaking in this regard. The defendant at the time of vacating of hut due to mala fide intention did not hand over t he hut in question to the plaintiff. He also did not intimate
about the vacation of the hut in question and put the lock on the main gate of the hut. The plaintiff wrote a letter to the Deputy Commissioner and requested to depute the Magistrate along with the police official of Cantt: Police Station for de -locking of hut in question and
to handover to the plaintiff staff. The Deputy Commissioner deputed the Assistant Commissioner Saddar for de -locking and handing over the possession of hut in question.
On 1 3.12.2014 the Assistant Commissioner along with the police officer of the Cantt:
Police Station de -locked the hut in question that was found empty and in a very deplorable
condition. The defendant had vacated the hut in question and badly damaged many arti cles
of the accommodation by breaking them miserably and remaining were taken away which were government property without the knowledge of the plaintiff. Now the hut in question is not in that condition to be used for residential purpose. As per the agreem ent the
defendant was not authorized for any addition/alteration in the Hut in question and was bound to return the hut in good condition, but the defendant has badly damaged the hut. During the process of shifting the defendant/appellant badly damaged the hut by removing
the windows, window glasses, roof sealing, sanitary item, kitchen fitting, sealing fan,
electric wiring, complete house water fitting, due to which the hut required reconstruction,
thus the defendant caused a loss of Rs.57,69,000/ - to the plaintiff. The plaintiff prayed to
direct the defendant to pay an amount of Rs.57,69,000/ - to the plaintiff in lieu of damages
caused by the defendant.
3. The appellant/defendant entered appearance and filed an application under Order
VII, Rule 11, C.P.C., which was rejected vide order dated 21.03.2016 and defendant was
directed to file written statement. Due to non -appearance of the defendant his right for
filling the written statement was closed under Order VIII, Rule 10, C.P.C. and plaintiff/respondent w as directed to produce evidence. On completion of plaintiff
witnesses, the trial court ex parte decreed the suit vide referred impugned ex parte
judgment, hence this appeal.
8. We have heard the learned counsel for the parties and have perused the availabl e
record. The perusal of record reveals that the appellant/defendant filed an application under Order VII, Rule 11, C.P.C., on 14.2.2016, whereafter on 15.2.2016, reply was filed by the plaintiff/respondent. On 21.3.2016 the trial court dismissed the appli cation under Order
VII, Rule 11, C.P.C. and fixed the matter on 28.3.2016 for filing written statement, but on the said date no proceedings were conducted due to strike of Advocates and the matter was fixed for 05.04.2016. On the said date the trial court imposed cost of Rs.1000/ due to non-
appearance of the appellant and afforded last opportunity to file written statement. On 11.4.2016 the right of defendant to file written statement was closed by the trial court.
Record transpires that the trial court ha d granted two opportunities to the defendant
for submitting written statement in absence of appellant. Since the filing of written statement is governed by procedural law and the Hon' able Supreme Court has held in Kailash v. Nanhku and others (AIR 2005 SC 2441), as follows:
"The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1, C.P.C., is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1, Order VIII, C.P.C. is couched in negative form, it does not specify any penal consequences flowing from the non- compliance. The provision being in the doma in
of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1, C.P.C. is not completely taken away."
9. In the light of the ratio decidendi of the cases cited hereinabove, when we examined
the orders and ex parte judgment and decree, no ample opportunity was afforded to the appellant to the written statement, rather the trial court pronounced the judgment forthwith by taking punitive action, when the defendant/appellant was not in attendance and not aware about striking of his right to file written statement. It is pertinent to mention here that on 05.04.2016 when the trial court imposed cost upon the defendant and on 11.4.2016
when his right for filing written statement was struck of, the defendant/appellant was not in attendance. The trial court ought to have issued summons for attendance to the dependent/appellant and thereafter should have proceeded with the matt er in accordance
with the law. The law favours that the matter should be decided on merits rather than technicalities.
For the above reasons, without touching merits of the case, the appeal is accepted
with no order as to costs, the impugned ex parte judg ment and decree dated 30.04.2016,
passed by the learned Civil Judge -IX, Quetta is set -aside, the suit is remanded to the trial
court with directions to provide fair opportunity to the defendant for filing written, whereafter trial court shall frame issues and record evidence of both the parties and to
decide the suit strictly on merits within a period of four months.
Decree- sheet be drawn separately.
ZC/100/Bal Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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