Form No: HCJD/C-121

ORDER SHEET
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
(JUDICIAL DEPARTMENT)

Writ Petition No. 3708 of 2021

Tausif Ahmed

Versus

Mst. Shaista Malik, etc.

[Link]. of Date of Order with signature of Judge and that

order/ order/ of parties or counsel where necessary.
proceeding proceeding
(01) 20.10.2021 M/s Mazhar ul Haq Hashmi & Umar Farooq
Malana, Advocates for the petitioner.

The petitioner has filed the instant writ

petition under Article 199 of the Constitution

of Islamic Republic of Pakistan, 1973, by

assailing the impugned order dated

06.02.2021, passed by learned Civil Judge 1st

Class, West-Islamabad, whereby right to file

written statement of the petitioner has been

closed.

02. Brief facts of the case are that the

respondent No.1/plaintiff filed a suit for

recovery of Rs. 26,04,663/- on account of

different heads i.e. Rent, Bills, Renovation,

Legal charges, Damages etc.

 2 Writ Petition No.3708 of 2021

03. That the petitioner/defendant was

summoned by the learned trial Court; learned

counsel for the petitioner/defendant filed

wakalatnama on 06.02.2020, in the Court of

learned Civil Judge 1st Class, West-Islamabad

and thereafter, on many occasions the case

was adjourned for submission of written

statement but the same was not submitted

and the right to file written statement of the

petitioner / defendant was closed vide

impugned order dated 06.02.2021.

04. Learned counsel for the petitioner /

defendant, inter alia, contends that impugned

order is the result of patent illegality; learned

trial Court has totally failed to look into the

proper provisions of law and observations;

order passed by the learned trial Court is

quite illegal, arbitrary and against the principle

of natural justice, law and equity and has

prayed for setting aside of impugned order.

05. Arguments heard, record perused.

06. Certified copy of the order sheet of

learned trial Court shows that learned counsel

for the petitioner / defendant filed

 3 Writ Petition No.3708 of 2021

wakalatnama on 06.02.2020; the case was

adjourned for 06.03.2020, for filing of written

statement with final opportunity but the same

was not submitted. Subsequently, the case

was adjourned for about nine (09) dates but

written statement was not submitted even on

03.12.2020, last and final opportunity was

provided by the learned trial Court for

submission of written statement but the same

was not submitted and after a period of one

year, the right to file written statement of the

petitioner / defendant was closed vide

impugned order dated 06.02.2021.

07. Statement of respondent No.1/plaintiff

was recorded by the learned trial Court on

08.03.2021; learned counsel for the petitioner

/ defendant cross-examined the PW-1 on

19.07.2021, but did not bother to challenge

the impugned order dated 06.02.2021, rather

the instant writ petition has been filed on

16.10.2021 i.e. with the delay of more than

eight (08) months after passing of the

impugned order dated 06.02.2021 and after

about 03 months of cross-examining the

PW-1/plaintiff’s witness.
 4 Writ Petition No.3708 of 2021

08. According to the Code of Civil Procedure

(Amendment) Act, 2020, Section 26-A in the

Code of Civil Procedure, 1908 has been

inserted which is reproduced for ready

reference:

“26A. Written statement and

proposed issues by the
defendant.—(1) The Defendant
shall file written statement not later
than thirty days from the date of
service to the plaintiff:

Provided that if the defendant

fails to file written statement on the
date fixed, the court may grant an
opportunity to file the same not later
than fifteen days subject to payment
of adjournment costs:

Provided further that if the

defendant fails to file after the
opportunity given under the first
proviso, a final opportunity may be
given by the Court to file the written
statement not later than fifteen days
subject to payment of adjournment
costs after which the defendant shall
lose the right of defence and the
Court shall close the right to defend
the case:

Provided also that the written

statement may be allowed to be filed
by the Court upon payment of costs
to be determined by it, if the
defendant through an application
supported by an affidavit, satisfies
the Court that he had just and
sufficient cause and the Court record
reasons for it.

(2) ---------------------------------

(3) ---------------------------------“
 5 Writ Petition No.3708 of 2021

09. Order XIII Rule 10 of Code of Civil

Procedure, 1908, provides as under:

“10. Procedure when party fails

to present written statement
called for by Court. Where any
party from whom a written statement
is so required fails to present the
same within the time fixed by Court,
the Court may pronounce judgment
against him, or make such order in
relation to the suit as it thinks fit.”

10. It is held by the Hon’ble Supreme Court

of Pakistan in a case titled as “Riaz ul Haq

and others Vs. Muhammad Asghar and

others” (2017 SCMR 1841), that:

“Order VIII, Rule 10 of C.P.C.

prescribes a timeframe for filing a
written statement which cannot
ordinarily exceed 30 days. A perusal of
the record indicates that the petitioners
were granted at least four opportunities
spread over a period of about five
months to file the written statement.
However, despite the time given and
indulgence shown by the Court, the
petitioners failed to file their written
statement without any lawful
justification. Where law prescribes a
time for doing a certain act, the same
should ordinarily be adhered to unless
cogent reasons and lawful justification
is presented before the Court justifying
an extension of such time. No such
 6 Writ Petition No.3708 of 2021

justification was pleaded before the

trial, appellate or revisional Court. Even
before us, other than submitting that
one more opportunity may be granted
against payment of costs, the learned
counsel did not furnish any reason or
justification for the petitioners' failure
to file their written statement despite
repeated adjournments granted by the
Court.”

Reliance is placed on cases titled as

“National Logistic Cell (N.L.C) Vs. Hazrat

Ali and others” (2010 SCMR 1970),

“District Coordination Officer, Sukkur

and 8 others Vs. Khan Muhammad

through General Attorney and 3 others”

(2013 MLD 1369), “Mst. Bibi Sundas and

others Vs. Mst. Bibi Shahida and others”

(2020 CLC 1475).

11. The August Supreme Court of Pakistan

in a case titled as “Moon Enterpriser CNG

Station, Rawalpindi Vs. Suit Northern

Gas Pipelines Limited, through General

Manager, Rawalpindi and another”

(2020 SCMR 300), while dealing with a

similar question of law pertaining to

application of Order XVII Rule 3 C.P.C has, in

unequivocal terms, held that:

7 Writ Petition No.3708 of 2021

"In our view it is important for

the purpose of maintaining the
confidence of the litigants in the
court systems and the presiding
officers that where last
opportunity to produce evidence
is granted and the party has
been warned of the
consequences, the court must
enforce its order unfailingly and
unscrupulously without
exception. Such order would in
our opinion not only put the
system back on track and
reaffirm the majesty of the law
but also put a check on the trend
of seeking multiple
adjournments on frivolous
grounds to prolong and delay
proceedings without any valid or
legitimate rhyme or reason.
Where the Court has passed an
order granting the last
opportunity, it has not only
passed a judicial order but also
made a promise to the parties to
the lis that no further
adjournments will be granted for
any reason. The Court must
enforce its order and honour its
promise. There is absolutely no
room or choice to do anything
else. The order to close the right
to produce evidence must
automatically follow failure to
produce evidence despite last
 8 Writ Petition No.3708 of 2021

opportunity coupled with a

warning. The trend of granting
(Akhri Mouqa) then (Qatai Akhri
Mouqa) and then (Qatai Qatai
Akhri Mouqa) make a mockery of
the provisions of law and those
responsible to interpret and
implement it. Such practices
must be discontinued,
forthwith”. (Emphasis supplied)

Reliance is also placed on a case titled as

“Rana Tanveer Khan Vs. Naseer Ud Din

and other” (2015 SCMR 1401).

12. It is well settled that certiorari is only

available to quash a decision for an error of

law. It will also be issued for correcting

errors of jurisdiction when an inferior Court

or a tribunal acts without jurisdiction or in

excess of its jurisdiction, or fails to exercise

its jurisdiction or where the Court or a

tribunal acts illegally in exercise of its

undoubted jurisdiction and it decides a

matter in violation of the principle of natural

justice. The High Court while issuing a writ

of certiorari acts in exercise of supervisory

and not appellate jurisdiction.

 9 Writ Petition No.3708 of 2021

13. In a case titled as "Amjad Khan Vs.

Muhammad Irshad (Deceased) through

LRs, (2020 SCMR 2155)", it is held by the

Hon'ble Supreme Court that:

"It is by now a settled principle

of law that the High Courts
must not exercise their
constitutional jurisdiction in
order to interfere with the
discretion exercised by lower
courts unless the same suffers
from jurisdictional, factual or
legal errors. In other words,
such interference would be
justified in cases where the
impugned order has been
passed without jurisdiction or
is based on misreading or non-
reading of evidence, or is not in
accordance with the law. If
none of these errors is present,
the High Courts must not
exercise their constitutional
jurisdiction to interfere with
the findings of lower courts
merely because it reached a
different conclusion as to the
controversy than the latter. In
this regard, reference can be
made to a collective reading of
Mst. Mobin Fatima v.
Muhammad Yamin (PLD 2006
SC 214) and Nadira Shahzad v.
 10 Writ Petition No.3708 of 2021

Mubashir Ahmad (1995 SCMR

1419)."

14. In a case titled as "President All

Pakistan Women Association, Peshawar

Cantt Vs. Muhammad Akbar Awan and

others” (2020 SCMR 260) , it is held by

the Hon'ble Supreme Court that:

"It is settled law that when the

Statute does not provide the
right of appeal against certain
orders, the same cannot be
challenged by invoking the
constitutional jurisdiction of
the High Court in order to gain
a similar objective. Where a
Statute has expressly barred a
remedy which is not available
to a party under the Statute, it
cannot be sought indirectly by
resort to the constitutional
jurisdiction of the High Court.
The High Courts exercising
constitutional jurisdiction must
be fully cognizant and
conscious of this Rule and
strictly adhere to the same in
the interest of advancing the
policy of law and delivering
expeditious justice in
accordance with the law and
the Constitution. Even
otherwise, constitutional
jurisdiction is equitable and
 11 Writ Petition No.3708 of 2021

discretionary in nature and

should not be exercised to
defeat or bypass the purpose of
a validly enacted statutory
provision."

15. It is held by the Hon’ble Supreme Court

of Pakistan in a case titled as “Chief

Executive MEPCO and others Vs.

Muhammad Fazil and others” (2019

SCMR 919), that:

“Where the Court or the Tribunal

has jurisdiction and it
determines specific question of
fact or even of law, unless
patent legal defect or material
irregularity is pointed out, such
determination cannot ordinarily
be interfered with by the High
Court while exercising
jurisdiction under Article 199 of
the Constitution.”

16. It has been held by the Hon’ble

Supreme Court of Pakistan in a case titled as

“Chairman, NAB Vs. Muhammad Usman

and others” (PLD 2018 SC 28), that:

“The powers of judicial review

vested in High Court under
Article 199 of the Constitution is
no doubt a great weapon in the
Judge’s hands however, the
 12 Writ Petition No.3708 of 2021

same shall not be exercised in a

case where discretion is
exercised by the subordinate
court/Tribunal in a fair and just
manner without violating or
disregarding statutory provision
of law, likely to occasion the
failure of justice. Ordinarily such
extraordinary jurisdiction shall
not be exercised at random and
in routine manner. The following
case law is reproduced for the
guidance of the learned Judges
of the High Court for future
course of action:

(i) Brig (Rtd.) Imtiaz Ahmed v.

Government of Pakistan, through
Secretary, Interior Division,
Islamabad (1994 SCMR 2142).

(ii) Shahnaz Begum v. The Hon’ble

Judges of the High Court of Sindh
and Balochistan (PLD 1971 SC 677).

(iii) Malik Shaukat Ali Dogar v.

Ghulam Qasim Khan Khakwani (PLD
1994 SC 281).

17. Reference in this regard may also be

made to the following case laws / principles

laid down by the Hon’ble Supreme Court of

Pakistan:

(i) In a case titled as “Syed

Saghir Ahmad Naqvi Vs.

13 Writ Petition No.3708 of 2021

Province of Sindh” (1996 SCMR

1165), it has been held as follows:

“The statute excluding a right

of appeal from the interim
order cannot be passed by
bringing under attack such
interim orders in
Constitutional jurisdiction.
The party affected has to
wait till it matures into a final
order and then to attack it in
the proper exclusive forum
created for the purpose of
examining such orders.”

(ii) In a case titled as “Mumtaz

Hussain alias Butta Vs. Chief

Administrator of Auqaf, Punjab”

(1976 SCMR 450), it has been held

as follows:-

“As the said Ordinance has

taken away the right of
petitioner to interim relief,
learned counsel submitted
that this was a ground which
entitled the petitioner to
prosecute a writ petitioner
despite the pendency of the
proceedings on the District
Court. The argument is
misconceived because the
writ jurisdiction of the
superior Courts cannot be
invoked in aid of injustice
and in order to defeat the
 14 Writ Petition No.3708 of 2021

express provisions of the

statutory law.”

18. Learned counsel for the petitioner has

failed to point out as to how the impugned /

interim order passed by the learned Civil

Judge 1st Class, West-Islamabad was the

consequence of an error of law or without

jurisdiction or in excess of jurisdiction.

19. In view of the above prospective, the

instant writ petition has no merits and the

same is dismissed in limine.

(TARIQ MEHMOOD JAHANGIRI)

JUDGE

Ahmed Sheikh

Approved for Reporting