PLD 2022 Lahore 409
Section 26-A (1) of the Code of Civil Procedure 1908, makes it clear that the defendant shall be required to file written statement within a period of 30 days from the date of his first appearance in the court. According to section 26-A(3) CPC, the Court shall close the right to defend the suit if defendant fails to file the written statement within the time specified in sub-section (1) of Section 26-A ibid.
Needless to say that the test to determine whether a provision is directory or mandatory is by ascertaining the legislative intent behind the same. The general rule expounded by this Court is that the usage of the word „shall‟ generally carries the connotation that a provision is mandatory in nature. However, other factors such as the object and purpose of the statute and inclusion of penal consequences in cases of non-compliance also serve as an instructive guide in deducing the nature of the provision. In the above provision, not only the word “shall” has been used, but penal consequences for failure of the defendant to file the written statement within the specified period have been prescribed. The legislative intent behind this provision appears to cut short the unnecessary delay that occurs at the time of submission of written statement, therefore, the provisions of section 26-A CPC, being mandatory in nature, are required to be complied with.
Similar provisions are available in some other laws. Section 22 of the Punjab Rented Premises Act, 2009, deals with leave to contest and its clause (2) provides that a respondent shall file an application for leave to contest within ten days of his first appearance in the Rent Tribunal. The Hon‟ble superior Courts have held that a Rent Tribunal has no jurisdiction to condone the time for filing petition for leave to contest as it would defeat the spirit of legislation.
Similarly, Section 159 of the Limitation Act, 1908 provides period of ten days, when summons was served, for filing petition for leave to appear and defend the suit filed under Order XXXVII of the Code of Civil Procedure, 1908. After expiry of said statutory period, a defendant is required to file application for condonation of delay explaining the delay of each and every day.
Needless to say that under Article 37(d) of the Constitution of the Islamic Republic of Pakistan, 1973, the State is bound to ensure inexpensive and expeditious justice. The provisions requiring a party to lis to do certain act within a prescribed limitation are introduced in order to curb long standing litigation, save precious public time and inconvenience to the parties. The conduct of a party is a relevant fact in the administration of justice. A party cannot be allowed to play hide and seek with the Court and to prolong the matter unnecessarily as well as to engage the machinery of the State department unnecessarily as per his whims and caprice besides wasting precious time of the Court. The Rules of Procedure are enacted to regulate the safe administration of justice in accordance with law and to check unnecessary delay in resolving the dispute between the parties. The golden maxim that “law aids the vigilant and not the indolent” provides that helpful hand could not be extended to a litigant having gone into deep slumber on having become forgetful of his /her rights. Those who sleep over their rights, stand estopped from getting their enforcement though their right continues.
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