Introduction
In civil litigation in Pakistan, when a defendant is served with summons in a suit, the law requires the defendant to file a Written Statement (W.S.) setting out their defence within a specified time under Order VIII of the Code of Civil Procedure, 1908 (CPC); however, where this right is closed by the court, the defendant may seek relief through an application for recalling order to restore the opportunity of filing the Written Statement in the interest of justice.
However, sometimes a defendant may fail to file the W.S within time, whether due to oversight, miscommunication, counsel’s absence, or similar reasons, and the court may pass an order debarring the defendant from filing the WS or proceeding ex parte. In such cases, the defendant’s remedy may be to apply to recall that order and restore the time to file the written statement.
Such an application is procedural in nature and aims to ensure fair trial and substantive justice, allowing a defendant to plead his defence rather than be condemned unheard. Pakistani courts recognize that procedural safeguards should not be used to defeat substantive rights.
Legal Provision for Written Statement
Order VIII, Rule 1, CPC:
- A defendant must present his Written Statement (W.S) at or before the first hearing or within such time as the Court permits.
- Provision: The period allowed for filing is ordinarily not more than 30 days from the date of service of the summons.
Order VIII, Rule 10, CPC:
- If the defendant fails to file a WS within the time fixed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.
This means that if a defendant misses the deadline, the court can strike off their defence/bar filing of the Written Statement (W.S.), but this is a discretionary power, not a mandatory one.
Legal Grounds for Recall & Restoration
There is no express provision in CPC that automatically restores time. Still, courts routinely exercise inherent jurisdiction under Section 151, CPC, i.e., the power to make orders as necessary to do complete justice, to recall an order, and restore the time to file a WS.
Typical legal grounds include:
- Mistake or inadvertence in noting the hearing date (e.g., counsel error).
- Procedural irregularity or court error in passing the order.
- Exceptional circumstances beyond the control of the defendant.
- Principle of audi alteram partem (every party must be heard), rooted in Article 10-A of the Constitution of Pakistan.
- Sufficient cause for non-compliance with time.
Even where Order VIII and its proviso set a timeframe, the courts have discretion to extend time beyond that period if sufficient grounds exist. It is well-settled that procedural timelines should not be used to oust a party’s right to present its case on the merits.
Similarly, the penal consequence of striking off defence under Rule 10 is discretionary: the court “may” make such an order, “not must”, and can restore time in appropriate circumstances.
Format of Application For Recalling Order and Restoring the Side Of Defendants For Filing Of Written Statement
Here is the format of Application is given below:
IN THE COURT OF ___________ SENIOR CIVIL JUDGE AT KARACHI DISTRICT ______________
CIVIL SUIT NO: _____ OF 20____
ABC ——————————————————- PLAINTIFF
V E R S U S
XYZ & OTHERS ————————————– DEFENDANTS
Format of Application For Recalling Order DATED _________ and Restoring the Side Of Defendants NO. 2 TO 4 For Filing Of Written Statement
It is most respectfully prayed on behalf of defendants NO. 2 to 4 above nmed that this Honorable Court kindly be pleased to allow instant application thereby restore the side of Defendants No. 2 to 4 to file the Written Statement and further be pleased to recall the Order Dated: ______________ in the larger interest of justice by considering the submissions that the delay in filing of Written Statement was neither deliberately nor intentionally but the circumstances that during pendency of the suit the Husband of the Defendant No. 4 ____________
was died and ultimately she went to sit and pass “period of iddat” and such intimation was already come on record and the process of comprmise between legal heirs were also in process but due to sudden death of Husband of Defendant No.4 the process of compromise were delayed, and further submitted that since after completion of iddat period, the defendant No.4 went to Kingdom of Saudia Arabia and performed Hajj-2025.
Therefore, the delay was neither delibrately nor intentionally and further submitted that the Defendant No.2 was also serioulsy ill due to vomiting stomach problems and loose motion and also skin allergy he was also not in position to appear before the Honorable Court of Law, despite of fact that such information was already share by the Counsel for the Defendants No. 2 to 4, therefore the delay is neither delibrately nor intentionally.
It is therefore prayed that this Honorable Court kindly be pleased to set aside the Order Dated: ____________ and restore the side of Defendants No.2 to 4 to file Written Statement in the above matter which is very much mandatory to decide the matter on merits instead of technicalities and further submitted that the Defendant No.2 ______________ having Documentory evidences which is very much important to defend his rights and interest therefore the order may be recalled in the interest of justice.
Prayed Accordingly
KARACHI
DATED: ______________
ADVOCATE FOR THE DEFENDANT NO. 2 TO 4
Disclaimer
The facts and grounds stated herein are purely hypothetical and are provided only as an illustrative example for drafting purposes; they do not relate to any real case or actual circumstances.
FAQs
Q1. What happens if a defendant misses the deadline to file a Written Statement under Order VIII CPC?
Under Order VIII Rule 10 CPC, if a defendant fails to file the Written Statement within the time fixed by the court, the court may pronounce judgment against them or pass any other order it considers appropriate, including debarring the defendant from filing the Written Statement altogether. Importantly, this consequence is discretionary; the rule states the court “may” pass such an order, not that it “must,” leaving room for the court to act otherwise depending on circumstances.
Q2. Is there a fixed time limit for filing a Written Statement under CPC?
Yes. Under Order VIII Rule 1 CPC, a defendant must file the Written Statement at or before the first hearing, or within such time as the court permits, which is ordinarily not more than 30 days from the date of service of summons. However, this is a procedural timeline, and courts retain discretion to extend it where sufficient cause is demonstrated.
Q3. Does the CPC have an express provision allowing automatic restoration of the right to file a Written Statement?
No. There is no express provision in the CPC that automatically restores this right once it has been closed. Instead, courts routinely rely on their inherent jurisdiction under Section 151 CPC, the power to make orders necessary to do complete justice, to recall the earlier order and restore the defendant’s opportunity to file the Written Statement.
Q4. What are the typical legal grounds relied upon for recalling such an order?
Common grounds include mistake or inadvertence in noting the hearing date, such as an error by counsel, procedural irregularity, or error by the court in passing the original order, exceptional circumstances genuinely beyond the defendant’s control, and the constitutional principle of audi alteram partem that every party must be heard, which is rooted in Article 10-A of the Constitution of Pakistan.
Q5. What constitutional principle supports an application for recalling such an order?
The application draws strong support from the principle of audi alteram partem, meaning no party should be condemned unheard. This principle is constitutionally rooted in Article 10-A of the Constitution of Pakistan, which guarantees the right to a fair trial. Courts are generally reluctant to let a party lose its right to defend itself purely on procedural grounds without a genuine opportunity to be heard.
Q6. Why is it significant that Rule 10’s penal consequence is described as discretionary rather than mandatory?
Because the rule uses the word “may” rather than “must,” courts are not legally bound to debar a defendant or pronounce judgment merely because the deadline was missed. This distinction is significant in drafting a recall application, since the advocate can argue that the court always retained the discretion to allow a fair opportunity, and exercising that discretion now to restore the right is consistent with the law’s original intent.
Q7. What kind of explanation does the court expect for the delay in filing the Written Statement?
Courts expect a clear, specific, and genuine explanation showing the delay was neither deliberate nor intentional. Vague or general statements are unlikely to succeed. The explanation should directly connect the circumstances to the period of delay and demonstrate that the defendant was prevented by genuine and unavoidable reasons from complying with the original timeline.
Q8. Why is it important to clarify that an example used in a legal draft is hypothetical?
When illustrative facts are used in a sample application, such as specific personal circumstances or family events, clearly stating that the facts are purely hypothetical and not related to any real case protects against any unintended association with an actual person’s private circumstances. This is considered good practice when publishing sample legal drafts for educational purposes, as it maintains both professionalism and confidentiality.