2007 PLP 2825 (YLR)

Representation

• Malik Noor Muhammad Awan for Petitioner.
• Ali Masood Hayat for Respondent No.3.
• MAULVI ANWARUL HAQ, J.-For the purpose of this judgment reference to the pleaded facts would not be necessary. Suffice it to say that on 16-2-2002, the petitioner filed a suit for specific performance of an agreement to sell against respondent No.3. The suit was contested by filing written statement. Issues were framed on 29-5-2003. The case was adjourned to 9-6-2003 for recording evidence of petitioner. On the said date the petitioner was not present and the case was adjourned to 12-6-2003. On this date one witness P.W. was examined and it was noted that the Court time was over and both the learned counsel asked for time. The case was adjourned to 19-6-2003. On this date the case was transferred to another Court and was adjourned by the said Court to 2-7-2003. On this date it was recorded that the evidence was present but the learned counsel for respondent No.3 was not prepared to cross-examine the witnesses. On his request the case was adjourned to 8-7-2003. On this date the order narrates that examination-in-chief of three witnesses of petitioner has been recorded. However, for the reason not stated the case was directed to be called at 2-00 p.m. for cross-examination. At the said point of time cross-examination of a witness (P.W.2) was recorded and it was found that the other witnesses had slipped away. Since cross-examination of P.W.2 had been recorded the learned trial Judge closed the right to produce other witnesses for the reason that the same stands disclosed. It was further mentioned that there was direction by the learned District Judge in the said case. Against this order a revision was filed, which has been dismissed by the learned A.D.J., Faisalabad on 1-9-2003.
• 2. The learned counsel for petitioner contends that in view of circumstance glaring on - the face of record, the learned trial Court had acted without lawful authority while closing remaining evidence of the petitioner because no fault is attributable to him.
• 3. The learned counsel for respondents, on the other hand, supports the impugned order with the contention that a frivolous suit had been filed and being prolonged.
• 4. I have examined the copies of record appended with this writ petition. I have already noted above detail of proceeding before the learned trial Court. I find that except for the first date i.e. 9-6-2003 no other adjournment is attributable at all to the petitioner. It is rather ironic that on 2-7-2003 i.e. immediately preceding date the learned trial Court did not feel any qualm while sending A away all the petitioner's witnesses, who were present as the learned counsel for respondent was not prepared to cross-examine them and sought adjournment. On the other hand on the next date he recorded examination-in-chief of three witnesses and no reason is forthcoming as to why the case was kept pending till 2-00 p.m. It can be safely assumed that this vas done only to accommodate the learned counsel, who had to cross-examine the witnesses. It is in the order that P.W.2 had been cross-examined at 2-00 p.m. Copy of statement of P.W.2 is Annexure "K" and lengthy cross-examination shows that it might have taken quite some time to record the same. An explanation was also furnished before the learned Court of revision that the witnesses kept on waiting in the Chamber of lawyer, but could not turn up when cross-examination of P.W.2 stood complete. To my mind the delay is wholly attributable to the learned trial Judge, who should have recorded the examination-in-chief of the witnesses turn by turn after cross-examination of each of the witnesses.
• 5. The learned counsel for respondents then contends that attorney of the petitioner himself was a witness and he should have, at least, waited outside the Court. He also complained that the proceedings have been prolonged because of the said fact. This complaint can be redressed with costs. The writ petition is allowed. Both the impugned orders are declared without lawful authority and are set aside. The learned counsel for parties are unable to state the next date fixed before the learned trial Court in the main case. Be that as it may the parties are directed to appear before the learned trial Court on 18-7-2007. The witnesses will be made available for cross-examination by the learned counsel for petitioner on the said date and their statements will be recorded. This will be subject to payment of costs of Rs.500 by the petitioner. No order as to costs in the writ petition. A copy of order of this Court be immediately remitted to the learned trial Court.

Judgment & Decree