Present
Mr. Justice Aqeel Ahmed Abbasi.
Mr. Justice Farooq Ali Channa.
1. Const. Petition No.D-1006 of 2010
Mst. Shahnaz Parveen……………………………………………………Petitioner
Versus
1st Additional District & Sessions Judge & others……………...…….Respondents
2. Const. Petition No.D-1007 of 2010
Mst. Shahnaz Parveen……………………………………………………Petitioner
Versus
1st Additional District & Sessions Judge & others……………...…….Respondents
3. Const. Petition No.D-1008 of 2010
Mst. Shahnaz Parveen……………………………………………………Petitioner
Versus
1st Additional District & Sessions Judge & others……………...…….Respondents
Date of hearing 28.08.2013
Date of order 28.08.2013
Mr. Mirza Adil M. Beg, advocate for the petitioner
Mr. Raja Ali Asghar, advocate for respondent No.3
-----------------
Aqeel Ahmed Abbasi, J: Through this common order and by consent of the counsel for the parties, we intend to dispose of the aforesaid constitutional petitions, as the parties in the instant petitions, the subject controversy and the order passed by the Courts below are same.
2. Brief facts as stated in the memo of petition(s) are that the respondent No.3 filed suits for specific performance against the petitioner before the learned IIIrd Senior Civil Judge Karachi East, whereafter issuance of notice to the petitioner, the matter was fixed for filing of written statement. On 28.05.2009, Syed Zafar Ali Shah, advocate appeared on behalf of the petitioner and filed Vakalatnama and requested for time to file written statement. The matter was again fixed for filing of written statement on 22.07.2009. However, the learned counsel for the petitioner could not appear on 22.7.2009, nor written statement was filed and the learned 3rd Senior Civil Judge Karachi East vide impugned order dated 22.7.2009 was pleased to struck of the defence of the defendant, whereas the petitioner was debarred from filing the written statement and it was further ordered that the matter may proceed ex-parte. The petitioner filed an application under Order IX Rule 7 CPC read with Section 151 CPC on 19.08.2008 alongwith written statement with a request to re-call the order of debarring the petitioner from filing written statement and to decide the case on merits. Objections were filed on behalf of the respondent to such application, whereafter, vide order dated 05.12.2009 the application filed by the petitioner under Order IX Rule 7 CPC read with Section 151 CPC was dismissed by the learned 3rd Senior Civil Judge Karachi East. The said order was assailed by the petitioner by filing Civil Revision before the learned District Judge Karachi East, whereafter the matter was assigned to 1st Additional District Judge Karachi East, who vide order dated 16th March 2010 was pleased to dismiss the civil revision application of the petitioner. Petitioner being aggrieved by such order has filed instant Constitutional Petitions with the following prayer:
(a) To declare that the impugned orders dated 22.07.2009 and 05.12.2009 passed by the respondent No.2 viz: IIIrd Senior Civil Judge, Karachi East and Order dated 16.03.2010 passed by the Respondent No.1 viz: 1st Additional District Judge, Karachi East in Civil Revision No.4 of 2010 are illegal, void and have no legal effect.
(b) To set-aside the impugned orders dated 22-07-2009 and 05-12-2009 of the respondent No.2 passed in Suit No.602 of 2009 and Order dated 16-03-2010 passed by the 1st Additional District Judge, Karachi East in Civil Revision No.4 of 2010 and whereby allow the Petitioner to place her written statement on record and directing the Respondent nNo.2 to adjudicate the Suit No.602 of 2009 on merits.
(c) To grant cost of the Petition
(d) To grant any other relief(s) as it deems fit and proper under the circumstances of the case.
3. Learned counsel for the petitioner has contended that both the Courts below have seriously erred in law and fact while declining the request of the petitioner to recall the order of debarring the petitioner from filing written statement, which was duly supported by her affidavit wherein, sufficient sufficient cause was shown for non-appearance on the fateful date, whereas, sufficient reasons were also given for not having filed the written statement on the said date. It has been contended by the learned counsel for the petitioner that the petitioner is a widow and ailing lady, who was not communicated the date of hearing and the directions of the Court to file written statement by her counsel, whereas, when she came to know about the impugned order she has instantly filed the application under Order IX Rule 7 CPC read with Section 151 CPC alongwith written statement within the period of limitation as provided under law. Learned counsel further submits that there was no deliberate default on the part of the petitioner nor the Courts below have recorded any finding in this regard, on the contrary, both the Courts below have summarily not considered the request of the petitioner, who has been debarred from filing written statement and to pursue the case on merits on account of non-appearance and non-filing of the written statement on one date of hearing which was not communicated to the petitioner, either by her counsel or through Court notice. Learned counsel further submits that the respondent, while filing counter affidavit to the listed application filed by the petitioner, did not dispute the fact regarding illness of the petitioner and non-communication of the date of hearing to the petitioner by her counsel. It has been contended by the learned counsel that the petitioner has a good prima-facie case on merits, whereas, the claim of the respondent is bogus, and if the petitioner is not allowed to file written statement and to lead evidence, it will seriously prejudice the right of the petitioner to defend her case on merits by producing evidence. Per learned counsel, matters are required to be decided on merits and not to be dismissed on technical grounds or on account of default. Learned counsel further submits that no prejudice will be caused to the respondent if the impugned orders are set aside and the matter is remanded back to the learned trial Court to allow the petitioner to file written statement and adduce evidence, whereafter, the matter may be decided on merits within a period of time as may be deemed reasonable by this Court. In support of his contention, learned counsel for the petitioner has placed reliance in the following judgments:
1.Muhammad Shafi v. Muhammad Hussain 2001 SCMR 827
2.Inamur Rehman Gillani v. Jalal Din 1992 SCMR 1898
3.Muhammad Hayat Khan v. Ali Akbar Khan 1998 CLC 209
4.Raza Muhammad v. Jumma Khan 1991 MLD 261
5.Rehmatullah v. Ikramullah and another 1984 CLC 886
4. Conversely, Mr. Raja Ali Asghar, learned counsel for the respondent though formally opposed the grant of instant petitions, however, could not controvert the submissions made by the learned counsel for the petitioner nor could distinguish the case laws relied in support of his contention. It has been argued that since no reasonable explanation was given by the petitioner for the default in filing of written statement, therefore, the petitioner was rightly debarred from filing the written statement.
5. We have heard both the learned counsel, perused the record and have also examined the case law relied upon by the learned counsel for both the parties. From perusal of the impugned orders passed by the Courts below, it appears that on account of singular default by the petitioner on 22.07.2009 when the written statement could not be filed, the petitioner was debarred from filing written statement and defence of the petitioner was struck of, whereas, the matter was directed to be proceeded ex-parte. It is further noted that while dismissing the application of the petitioner for recalling the said order no finding has been recorded by the learned Senior Civil Judge, as to whether the default on the part of the petitioner was willful and deliberate and the reasons as disclosed in the supporting affidavit filed by the petitioner were not sufficient. Similarly, learned 1st Additional District Judge, while passing the impugned order on the civil revision filed by the petitioner has also failed to record such finding, on the contrary, appears to have been mislead on the point of limitation, despite the fact that neither such objection was raised by the respondent nor infact the revision was time barred. We have further noted that the petitioner has shown vigilance by promptly filing the application seeking recalling of the order passed by the learned Senior Civil Judge, whereby the petitioner was debarred from filing written statement, whereas the written statement was also filed alongwith such application, which reflects that the petitioner had no intention to linger on the matter and was also willing to proceed with the matter on merits. We have no hesitation in observing that the Courts are required to decide the matters on merits, instead of dismissing the same on technicalities or on account of non-prosecution or default on the part of either party. In the instant matters no useful purpose is served since debarring the petitioner from filing written statement and to defend his case on merits by producing the evidence, as reportedly, no progress whatsoever has been made in the suit proceedings so far.
6. In view of hereinabove, we are inclined to agree with the contention of the learned counsel for the petitioner, which is duly supported by the case law on the subject, which otherwise has not been seriously disputed by the learned counsel for the respondent. Accordingly, the impugned orders passed by the Courts below are hereby set-aside and the matter is remanded back to the learned trial Court with the directions to accept the written statement already filed by the petitioner and also allow the petitioner to lead evidence, if any, and to finally dispose of the matter preferably within a period of six months from the date of receipt of this order. Both the parties to the suit(s) and their counsel may make all possible efforts to proceed with the matter regularly and shall not seek unnecessary adjournments.
Instant petitions stand disposed of in the aforesaid terms alongwith listed application.
J U D G E
J U D G E