2005 C L C 1422

[Peshawar]

Before Muhammad Qaim Jan Khan and Muhammad Raza Khan, JJ

ALLAH BAKHSH---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE-I, D.I. KHAN and 2 others---Respondents

Writ Petition No.138 of 2002, decided on 16th May, 2005.

(a) Civil Procedure Code (V of 1908)---

----S. 128(2)(f) & O.VIII, Rr.1, 9---Constitution of Pakistan (1973), Art.199---

Constitutional petition---Suit for recovery of balance price of motorcycle---Defendant's
plea was that plaintiff had received balance money before due date---Trial Court in
compliance with provisions O.XV, C.P.C., framed two issues and adjourned case for
plaintiff's evidence---Defendant on adjourned date filed application for amendment of
written statement to assert therein that plaintiff had agreed to transfer his land in lieu of
price of tractor, but plaintiff was found to be its occupancy tenant and not its owner---
Trial Court dismissed such application, which judgment remained intact in revision filed
by defendant---Validity---Neither such land of plaintiff had been transferred nor tractor
had been delivered, thus, alleged adjustment of balance amount of motorcycle in price of
tractor was merely fictitious, frivolous and meaningless---Prayer for amendment was
self-negating, unreasonable and frivolous---Defendant had taken 11 months for filing
written statement and thereafter by moving such frivolous application had further
prolonged matter for five years---Suit had been delayed for almost six years---Such
conduct of defendant amounted to gross misuse of process of law---Trial Court should
have imposed costs for causing unnecessary delay through such frivolous application---
Courts below had exercised jurisdiction legally---High Court dismissed Constitutional
petition with costs throughout while directing Trial Court to decide suit within one month
after allowing parties to lead evidence on issues already framed.

(b) Civil Procedure Code (V of 1908)---

----O. VIII, R.1---Written statement-Period of thirty days prescribed for filing of written
statement---Effect---Written statement must not be accepted beyond thirty days of first
hearing---Plaint would be taken as uncontroversial, if written statement was not
submitted within thirty days---Where law prescribed a time limit in terms of days, then
same could be relaxed for some days only---Term "ordinarily" used in proviso to O.VIII,
R.1, C.P.C., though diluted mandatory effect of the term "shall not" used therein, but
same would not mean to have entirely relaxed prescription of period of "thirty days"---
Such period might exceed by a couple of days in exceptional circumstances, but delay of
several weeks or months would be violative of proviso to O.VIII, R.1, C.P.C.---Not
possible under law to adjourn matter for several times to afford opportunity and then "last
opportunity" for filing written statement---Principles.

PLD 1996 Lah. 523 rel.

(c) Administration of justice---

----Delay by Court in disposal of civil cases---Steps for curtailing such delay highlighted.

Court delays have become the major ground of criticism against our system of
administration of justice. This can be rectified by a collective effort to plug every leaking
point, so that the delay can be reduced as far as possible. The delay in submission of
written statement, the filing of miscellaneous petition, the frequent adjournments for the
production of evidence, the lack of application of mind for choosing the proper mode of
summons, the failure to avail the facility of Rule 10-A of Order V, C.P.C. for the issue of
several processes of service simultaneously, the unnecessary insistence of proving
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certified documents by oral evidence of official witnesses etc., are some of the areas
mainly responsible for causing delay in the disposal of civil suits. The due attention to
these issues can certainly curtail the delay.

(d) Administration of justice---

----Where law required a thing to be done in a particular manner, then same would be
lawfully done only, if was done in such manner and not otherwise.

(e) Civil Procedure Code (V of 1908)---

----S. 128(2)(f)---Money suits---Summary trial of such cases---Scope---Spirit of summary

procedure was to finalize a matter on first day of hearing or at least within a couple of
days or weeks thereafter---Delay of 11 months in filing of written statement neither
justified in summary trial cases nor permissible in normal cases---Object of summary trial
of such cases as required by S.128(2)(f), C.P.C., could be achieved by issuing summons
in Form No.1, Appendix "B", C.P.C., and by hearing parties at first hearing of suit in
compliance with O.X read with O.XV, C.P.C.---Non-compliance of legal provision at
initial stage would delay disposal of such cases, prolong agony of plaintiff and result in
depreciation of value of suit money---Money suits should be given priority, otherwise
purpose of approaching Court would be defeated---Principles illustrated.

(f) Civil Procedure Code (V of 1908)---

----S. 115---Constitution of Pakistan (1973), Art.199---Constitutional petition against

revisional order of Court with prayer as made in original proceedings---Maintainability---
Article 199 of the Constitution provided for extraordinary remedy against a State
functionary, who had trespassed his jurisdiction, or failed to exercise jurisdiction so
vested in him---Where law did not provide a remedy after decision of revision petition,
then creation of an additional remedy through Constitutional petition would be patently
illegal as thereby intention of Legislature of drawing a line for termination of litigation
would be negated---Unless petitioner pointed out some serious defects in exercise of
jurisdiction by judicial fora, Constitutional petition would not be maintainable as a matter
of routine---Principles.

Saleemullah Khan Ranazai for Petitioner.

Muhammad Waheed Anjum for Respondents.

Date of hearing: 16th May, 2005.

JUDGMENT

MUHAMMAD RAZA KHAN, J.--- In this Constitutional petition the decisions of the
learned Additional District Judge-I, D.I. Khan, dated 15-7-2002 and that of the learned
Civil Judge-III, D.I. Khan, dated 23-1-2001 have been challenged on the grounds that the
law permitted the amendment of pleadings at any stage and the refusal to do so was
illegal.

2. A suit was filed by Nek Badshah, plaintiff (respondent No.3) for recovery of Rs.50,000
on the basis of an agreement dated 2-6-1997 whereby a motorcycle was sold by the
plaintiff to Allah Bakhsh defendant (petitioner) for Rs.68,000 and a sum of Rs.25,000
was paid by the defendant while the remaining amount was payable in two instalments
i.e. on 21-6-1997 and 30-3-1998. There was a further stipulation in the agreement that if
the balance amount is not paid by 30-3-1998, the defendant shall be liable to pay
Rs.50,000 in lump sum. Since the said amount was not paid by the due date, therefore,
the suit for recovery of Rs.50,000 was filed. The defendant/petitioner submitted written
statement on 26-5-2000 through his counsel wherein the execution of agreement dated 2-
6-1997 was admitted and the payment of Rs.25,000 was also admitted. The defendant
further confirmed that the date for the payment of balance amount was 30-3-1998,
however, it was averred that since the plaintiff had already received the balance amount,
therefore, the plaintiff was not entitled to recover either the amount due or the sum of
Rs.50,000 as claimed.
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3. On 27-7-2000 the defendant/petitioner filed an application for amendment of the
written statement for raising a counter-claim that the defendant had sold a tractor to the
plaintiff for Rs.3,50,000 and after adjusting the balance amount of Rs.38,000 for the said
balance amount of motorcycle, the remaining amount of Rs.3,12,000 was due from the
plaintiff. It was further proposed to be added in the amended written statement that the
plaintiff had agreed to transfer his land in lieu of the price of tractor but on verification it
was found that the land was merely occupancy tenancy rights and the plaintiff was not the
owner of the land.

4. This application was contested by the plaintiff and after getting a reply and hearing
arguments, the application for amendment of written statement was rejected by the
learned Civil Judge-III, D.I. Khan vide order, dated 23-1-2001 holding therein that the
defendant intended to amend each paragraph of the written statement whereby all the
contents thereof shall be changed by the introduction of an altogether different defence.
This order was challenged and the learned Additional District Judge-I, D.I. Khan, vide
detailed order, dated 15-6-2002, dismissed, the revision petition. In the revisional order it
was held that the proposed amendment was contrary to the admitted agreement as well as
it related to a transaction which had never taken place because the defendant admits that
due to defect in the title of land, he had not delivered the tractor to the plaintiff. This
decision has been challenged through the present Constitutional petition.

5. The learned counsel for the petitioner argued that the amendment in the pleadings is
permissible at any stage of the proceedings and that by way of amendment, the nature of
the suit will not be changed. He added that permission to amend the written statement
was an established practice and that the request for the amendment was made at the initial
stage of hearing of the case when the evidence had not yet been recorded. While
explaining the need for amendment, he contended that if certain facts are not allowed to
be raised in the written statement, the petitioner would not be allowed to produce
evidence with regard to such facts and therefore, he will be deprived of his legal rights.

6. The learned counsel for the respondent objected to the maintainability of the
Constitutional petition as well as to the bona fides of requesting for amendment in the
written statement.

7. In this case there are three very important issues to be resolved, firstly, is the
amendment bona fide and justified? Secondly, should the amendment be allowed and
thirdly, whether the Constitutional petition is maintainable?

8. The record indicates that the suit was filed on 19-5-1999 and summonses were issued
for 21-6-1999. On 21-6-1999, the defendant appeared and the case was adjourned for the
submission of written statement to 14-7-1999. On that date a request was made for
adjournment to enable the defendant to file a written statement. The case was adjourned
for two months and on 15-9-1999, instead of submitting a written statement, a
miscellaneous petition indicating the non-payment of proper court-fee and for rejection of
plaint under Order VII, Rule 11, C.P.C. was made. On 7-3-2000 the plaintiff was directed
to affix the required court-fee within one month. On 8-4-2000 both the parties, including
the defendant, were present in person and again a request was made for adjournment to
submit a written statement. On 23-5-2000 written statement was again not submitted and
the learned Court granted last chance for the production of written statement on 26-5-
2000. At last the written statement was presented on 26-5-2000 and the case was
adjourned for recording the evidence of the plaintiff. On the next date of hearing, the said
application for amendment of written statement was made which is in process till today.
This would indicate that initially the defendant took almost eleven months for the
submission of written statement and thereafter by moving a frivolous application, the
matter was further prolonged for five years. So a simple money suit has been delayed for
almost six years and still the process is at square one. This amounts to the gross misuse of
the process of law.

9. Rule 1 of Order VIII, C.P.C. provides for the manner and time of submission of written
statement, which reads:---

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 "(1) Written statement.---The defendant may, and if so required by the Court
shall at or before the first hearing or within such time as the Court may permit,
present a written statement of his defence:

Provided that the period allowed for filing the written statement shall not
ordinarily exceed thirty days."

This indicates the intention of the Legislature that the written statement shall be filed:--

(a) preferably before the date of first hearing

(b) positively at the first hearing, or

(c) in extraordinary situations the Court may allow time for the filing of written
statement.

(d) however, the Court shall not allow time for this purpose beyond thirty days.

The term "shall" in the proviso to rule 1 indicates the will of the Legislature that written
statement must not be accepted beyond thirty days of the first hearing. If the written
statement is not submitted within the said period, "the plaint is to be taken as
uncontroverted". PLD 1996 Lah. 523. Although by taking benefit of the term "ordinarily"
in the said proviso, one can feel comfortable that it has diluted the mandatory effect of the
term ‘shall not’, but it does not mean that the term "ordinarily" has entirely relaxed the
prescription of period of "thirty days". The period may exceed by a couple of days in
exceptional circumstances but the delay for several weeks or months was certainly
undesirable. By taking shelter of the interpretation that in procedural matter the term
"shall" is directory and not obligatory. The Courts have unfortunately adopted an unusual
attitude of ignoring the real intention of law. If the law has prescribed a time limit in
terms of days, it can be relaxed for some days only. The delay of eleven months in the
submission of written statement was certainly not permissible by the law and by
accepting the written statement at such a belated stage the "proviso" to rule 1 of Order
VIII, C.P.C. was openly violated.

10. Moreover Rule 10 of Order VIII, C.P.C. also provides that if the party fails to submit
written statement within the time fixed by the Court, the Court may pronounce judgment
against him, or make such order in relation to the suit as it thinks fit. There is no
possibility of adjourning the matter seven times to afford opportunity and the "last
opportunity" for filing written statements. Court delays have become the major ground of
criticism against our system of administration of justice. This can be rectified by a
collective effort to plug every leaking point so that the delay can be reduced as far as
possible. The delay in submission of written statement, the filing of miscellaneous
petitions, the frequent adjournments for the production of evidence, the lack of
application of mind for choosing the proper mode of summons, the failure to avail the
facility of Rule 10-A of Order V, C.P.C. for the issue of several processes of service
simultaneously, the unnecessary insistence of proving certified documents by oral
evidence of official witnesses etc. etc., are some of the areas mainly responsible for
causing delay in the disposal of civil suits. The due attention to these issues can certainly
curtail the delay.

11. This was a simple suit for recovery of money based on an agreement. Section 128(2)
(f) of the C.P.C. provides for the summary disposal of certain type of cases which are:-

"(f) Summary Procedure---(i) in suit in which the plaintiff seeks only to recover
a debt or liquidated demand in money payable by the defendant, with or without
interest, arising---on a contract express or implied; or on an enactment where the
sum sought to be recovered is a fixed sum of money or in the nature of a debt
other than a penalty; or

on a guarantee, where the claim against the principal is in respect of a debt or a

liquidated demand only; or on a trust; or

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 (ii) in suits for the recovery of immovable property, with or without a claim for
rent or mesne profits, by a landlord against a tenant whose term has expired or has
been duly determined by notice to quit, or has become liable to forfeiture for non-
payment of rent, or against persons claiming under such tenant:" (the underlining
indicates the provision relevant to the case in hand)

When the law requires a thing to be done in particular manner, it will be lawful only if it
is done in the same manner and not otherwise. The spirit of summary procedure is to
finalize a matter on the very first day of hearing or at least within a couple of days or
weeks thereafter. The delay of 11 months in the submission of written statement cannot
be justified in summary trial cases. By the way, such delay is not permissible in normal
cases too. The procedure for summary trial of civil matter as required in section 128 of
the C.P.C., can be gathered by the cumulative effect of Order V, rule 5, Order X, Order
XV and Form No.1 of Appendix "B" of the C.P.C. A mechanism has been prescribed that
in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money
payable by the defendant ... arising of a contract express or implied (section 128(2)(1)(i),
C.P.C.), "the Court shall determine at the time of issuing the summons whether it should
be for ... the final disposal of the suit; and the summons shall contain a direction
accordingly" (Order V, rule 5, C.P.C.). The summons contained in Form No. 1 Appendix
"B" of C.P.C. should be issued in such cases. At the first hearing of the suit the parties
should be heard in compliance with Order X read with Order XV, C.P.C. Had the Court
applied the mind and issued the summons for final disposal of the case, the matter would
have been decided on 21-6-1999 or immediately thereafter. However, by omitting to
comply with the legal provision initially, the matter has already been delayed for six
years and is likely to consume considerable more time. In such a situation, one can
appreciate the agony of the plaintiff and the depreciation in the value of Rs.50,000 during
the period of six years and more. This provides the justification that certain cases,
particularly the money suits, need to be given priority so that the purpose of approaching
the Court of law is not defeated. Undoubtedly the parties have incurred much more than
the suit money during this lengthy period of litigation when the original matter is still at
the stage of written statement only.

12. The written statement submitted on 26-5-2000 contained an admission that the
agreement was true, sale of motorcycle was admitted and partial payment of Rs.25,000
was also admitted. The date of final payment of balance amount i.e. 30-3-1998 was also
admitted. However, it was added that the plaintiff had received the balance money before
the due date. At this stage the Court had to apply Order X and Order XV of the C.P.C. and
the defendant could be asked to prove the payment of the balance amount before 30-3-
1998 as stated in para.2 thereof. It is commendable that the learned Civil Judge-III, D.I.
Khan did the same and framed two issues in compliance with the provisions of Order XV,
C.P.C. However, the defendant, realizing the fate of the matter, filed an application for
amendment of written statement and turned the directions of the tide. It also needs to be
observed that the application for amendment in the written statement was filed on 27-7-
2000, which was decided on 23-1-2001. The learned Court should have imposed cost for
causing unnecessary delay through the frivolous application. Neither the learned trial
Court nor the learned Appellate Court penalized the defendant for misuse of the process
of law, rather the Appellate Court explicitly ordered that the parties are left to bear their
own costs. Such mechanical disposal of frivolous proceedings encourages the clever and
chronic litigant to prolong the just causes of the plaintiffs for several years.

13. The learned Additional District Judge, while disposing of a revision petition, has
clearly analyzed the real intention of the defendant. He wanted to add a ground in the
written statement relating to a transaction which had never materialized. Interestingly the
petition for amendment itself contains the fact that in addition to the transaction of
motorcycle, the parties had entered into a transaction of sale of tractor in lieu of land but
neither the land was transferred nor the tractor was delivered, therefore, the alleged
adjustment of balance amount of motorcycle in the so-called price of the tractor was
merely fictitious, frivolous and meaningless. Hence there is no justification for the
amendment of the written statement.

14. Article 199 of the Constitution provides for extraordinary remedy against the State
functionary who has trespassed beyond his jurisdiction or failed to exercise the
jurisdiction vested in him. In this case the jurisdiction was adequately exercised by both
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the learned Courts and there was neither any excessive use of jurisdiction nor failure or
refusal to exercise of jurisdiction so vested. This petition is a typical example of the
misuse of process of law. When the law does not provide a remedy after the decision of
the revision petition, the creation of an additional remedy through the Constitutional
petition is patently illegal because thereby the intention of Legislature of drawing a line
for the termination of litigation is negated. The Constitutional petitions are frequently
filed against the revisional orders of the Courts in such a routine manner as if the
Constitutional petition was the next available remedy. Such petitions are pursued, as a
matter of right, with the same prayer as made in the original proceedings. Thus, an
attempt is made that whatever could not be achieved from the original Courts, the same
should be achieved through Constitutional process. This can never be the intention of law
or the Constitution. Unless the petitioner points out some serious defects in the exercise
of jurisdiction by the judicial fora, the Constitutional petition is not maintainable as a
matter of routine. In the case in hand the prayer of the petitioner was self-negating,
unreasonable and frivolous, therefore, the Courts had no alternative but to reject the
same.

15. With these observations, we hereby dismiss this petition with costs throughout, with
the direction to the learned trial Court to require both the parties to produce evidence on
the two issues already framed and decide the matter summarily within a month
henceforth.

S.A.K./441/P Petition dismissed.

***

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