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 WS 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
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.