Introduction
In civil litigation in Pakistan, once a defendant is served with summons, the law requires them 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). Where a defendant misses this deadline, and the Court closes that right, debarring the defendant from filing the W.S. or proceeding ex parte the remedy is an Application for Recalling Order, seeking restoration of the opportunity to file the Written Statement in the interest of justice.
Missing this deadline happens more often than it should: counsel’s oversight, a missed hearing date, miscommunication between client and lawyer, illness, or a family emergency are the usual causes. When it happens, the Court may pass an order debarring the defendant or proceeding ex parte, but that order is not necessarily final. In the right circumstances, it can be recalled.
This application is procedural in nature and exists to protect fair trial rights. Pakistani courts have consistently held that a party should not be condemned unheard purely on a procedural technicality, provided a genuine, well-supported reason is shown for the delay.
Legal Provisions Governing the Written Statement and Its Recall
Order VIII, Rule 1, CPC
- A defendant must present the Written Statement at or before the first hearing, or within such time as the Court permits.
- The period allowed is ordinarily not more than 30 days from the date of service of summons.
Order VIII, Rule 10, CPC
- If the defendant fails to file the W.S. within the fixed time, the Court may pronounce judgment against them or make such other order as it thinks fit, including debarring the defendant from filing the W.S.
- This is a discretionary power, not mandatory; the word used is “may,” not “shall.” That distinction is the legal foundation the recall application is built on.
Section 151, CPC | Inherent Powers
There is no express CPC provision that automatically restores the time to file a W.S. once it’s closed. Instead, courts routinely invoke their inherent jurisdiction under Section 151 CPC, the power to pass orders necessary to do complete justice, to recall the earlier order and restore the defendant’s opportunity to file the Written Statement.
Legal Grounds for Recall and Restoration
Typical grounds relied upon include:
- Mistake or inadvertence in noting the hearing date (e.g., counsel’s error).
- Procedural irregularity or an error by the Court in passing the original order.
- Exceptional circumstances genuinely beyond the defendant’s control illness, family emergency, travel, and similar.
- The constitutional principle of audi alteram partem (no party shall be condemned unheard), rooted in Article 10-A of the Constitution of Pakistan.
- Sufficient cause shown for the non-compliance with the original timeline.
Even though Order VIII sets a 30-day framework, courts retain discretion to extend time beyond it where sufficient cause is genuinely demonstrated; procedural timelines are not meant to permanently shut a party out of presenting its case on merits. And because Rule 10’s penal consequence is discretionary (“may,” not “must”), the recall application effectively asks the Court to exercise that same discretion in the defendant’s favour now, rather than treating the earlier order as an automatic, irreversible bar.
Step-by-Step Procedure for Filing an Application for Recalling Order
- Identify the order to be recalled. Get a certified copy of the specific order debarring the W.S. or proceeding ex parte; the recall application must reference its exact date and terms.
- Establish the ground. Confirm which of the recognized grounds (counsel’s mistake, illness, procedural irregularity, exceptional circumstance) genuinely applies, and gather any supporting proof medical certificates, travel records, correspondence before drafting.
- Draft the application under Section 151 CPC, read with Order VIII Rules 1 and 10, specifically explaining why the delay was neither deliberate nor intentional, and what defence/documentary evidence the defendant stands to lose if not restored.
- File before the same Court that passed the original debarring/ex parte order, not an appellate or a different forum.
- Supporting affidavit. Most Courts expect an affidavit affirming the facts stated in the application, particularly where the explanation involves personal circumstances (illness, bereavement, travel).
- Court notice to the opposite party: where the matter is contested, the plaintiff’s side is generally allowed to respond before the recall application is decided.
- Court’s order. If satisfied of sufficient cause, the Court recalls the earlier order and restores the defendant’s right to file the Written Statement, usually granting a fresh, limited time frame to do so.
- File the Written Statement promptly: Once restored, courts are noticeably less sympathetic to a second delay after having already granted the recall.
Documents to Prepare Before Filing
- Certified copy of the order sought to be recalled.
- Affidavit in support, addressing the specific reason for delay.
- Any supporting proof of the stated ground: medical certificate, travel documents, death certificate/iddat-related documents in family circumstances, correspondence showing counsel’s or client’s genuine oversight.
- Vakalatnama, where filed through counsel.
- A short note of the defence/documentary evidence the defendant intends to rely on if restored; courts respond better to a recall application that shows there’s a real defence to be heard, not just an apology for the delay.
Where These Applications Commonly Run Into Trouble
- Vague explanations. “The delay was unintentional” without specifics rarely succeeds; courts expect the explanation to be tied to concrete dates and facts, not a general assertion.
- No supporting proof. An illness or family circumstance claimed without any supporting document (medical slip, death certificate, etc.) is far weaker than the same claim backed by paper.
- Delay in filing the recall application itself. If the debarring order was passed months ago and the recall is filed only when the case is about to be decided, courts often question why the defendant waited to file promptly once the debarring order was discovered.
- No mention of a genuine defence. Simply asking to be let back in, without indicating what defence or evidence exists, weakens the application; the Court is more inclined to restore a right where there’s something substantive to defend.
- Repeated defaults. A recall application following a defendant’s second or third missed deadline is judged far more strictly than a first-time lapse; courts start suspecting deliberate delay tactics.
Format of Application for Recalling Order and Restoring the Side of Defendants for Filing of Written Statement
Here is the format of the application:
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
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 named that this Honorable Court kindly be pleased to allow the 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 the Written Statement was neither deliberate nor intentional, but the circumstances were that during the pendency of the suit.
The husband of Defendant No. 4 ____________ expired, and she thereafter observed the period of iddat, and such intimation was already on record; the process of compromise between the legal heirs was also underway, but was delayed due to the sudden death of the husband of Defendant No. 4, and it is further submitted that after completion of the iddat period, Defendant No. 4 travelled to the Kingdom of Saudi Arabia and performed Hajj-2025.
Therefore, the delay was neither deliberate nor intentional, and it is further submitted that Defendant No. 2 was also seriously ill due to vomiting, stomach problems, loose motion, and skin allergy, and was not in a position to appear before the Honorable Court, even though such information was already shared by the Counsel for Defendants No. 2 to 4; therefore the delay is neither deliberate nor intentional.
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 the Written Statement in the above matter, which is very much mandatory to decide the matter on merits instead of technicalities, and it is further submitted that Defendant No. 2 ______________ has documentary evidence 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 above 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.
Conclusion
An Application for Recalling Order is one of the more common but genuinely important remedies in civil practice; it stands between a defendant and losing their entire right to defend a suit over what is often a procedural lapse rather than a substantive failing.
Because Order VIII Rule 10 CPC gives courts discretion rather than a mandatory bar, and because Section 151 CPC allows courts to recall orders in the interest of complete justice, a well-supported recall application with specific facts, real proof, and a genuine defence to present has a solid chance of success.
The applications that struggle are almost always the ones that treat the explanation as a formality instead of building it out with dates, documents, and a clear account of what defence is actually at stake.
For related civil procedure work, see our guide on Application under Section 5 of the Limitation Act for Condonation of Delay, and for foundational drafting practice, see How to Draft a Vakalatnama in Pakistan.
Frequently Asked Questions
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 fixed time, the Court may pronounce judgment against them or pass any other order it considers appropriate, including debarring the defendant from filing the Written Statement. This consequence is discretionary the rule says “may,” not “must,” leaving room for the Court to act otherwise depending on the 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, ordinarily not more than 30 days from the date of service of summons. Courts retain discretion to extend this where sufficient cause is shown.
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 automatically restoring this right once closed. Courts instead rely on their inherent jurisdiction under Section 151 CPC 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 counsel’s error), procedural irregularity or court error in passing the original order, exceptional circumstances genuinely beyond the defendant’s control, and the constitutional principle of audi alteram partem under Article 10-A of the Constitution of Pakistan.
Q5. Before which court should the Application for Recalling Order be filed?
Before the same Court that passed the original debarring or ex parte order not an appellate forum. The Court needs its own file and order sheet to verify and recall its own order.
Q6. 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, tied to actual dates and facts rather than a general statement, and ideally supported by documentary proof.
Q7. Why is it important to mention the defendant’s defence or evidence in the recall application itself?
Because courts are more inclined to exercise discretion in favour of restoration where there’s a genuine defence at stake. An application that only apologizes for the delay, without indicating what the defendant stands to lose, is weaker than one that shows real documentary evidence exists to defend the claim.
Q8. Does the opposing party get a chance to respond before the recall application is decided?
In most contested matters, yes, the Court typically issues notice to the plaintiff’s side, who may oppose the recall, before deciding whether to restore the defendant’s right to file the Written Statement.
Q9. What happens if a defendant is granted recall but then misses the fresh deadline again?
Courts are markedly less sympathetic to repeated defaults. A second lapse after an order has already been recalled once is often treated as evidence of deliberate delay rather than genuine hardship, making a further recall application much harder to succeed on.
Q10. Why is it stated that the facts used in a sample recall application are hypothetical?
When illustrative facts are used in a sample application such as specific personal or family circumstances clearly stating they are hypothetical and unrelated to any real case protects against unintended association with an actual person’s private circumstances, which is good practice when publishing sample legal drafts for educational purposes.
Disclaimer
The format and information provided above are for educational and reference purposes only. They are intended to offer general guidance on legal drafting and procedure and should not be treated as legal advice. Each case depends on its own specific facts, applicable law, and court practice; users are advised to modify the format according to their particular circumstances and seek professional legal advice as necessary.