2016 PLP 1796 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

By filing the instant Constitutional Petition, the petitioners have challenged the order dated 28.05.2009 passed by learned trial court whereby right of cross examination of petitioners on DW1 to DW5 was closed and judgment dated 05.10.2009 delivered by learned Additional District Judge by virtue of which Civil Revision filed by the petitioners was also dismissed. Being aggrieved, instant writ petition has been filed.

2. Arguments of learned counsel for the petitioners heard. On the other none has turned up on behalf of respondent No.3, who was served personally as well as respondent No.6, who was duly represented by an advocate, and as such they are proceeded ex-parte. Record perused.

3. The facts germane for the disposal of instant petition are that petitioners filed a suit for possession through specific performance of oral agreement to sell coupled with receipt dated 22.05.1995 against the respondents on 20.11.2000 (almost 13-1/2 years ago). It is significant to note that respondent No.1 was real sister of petitioner No.1. The said suit was resisted by the respondents/defendants and the learned trial court captured the disputed area of fact by framing issues on 07.01.2004 (it is also a sad state of affairs that even the trial court took 3-1/2 years to frame the issues). Thereafter, the petitioners/plaintiffs were invited to lead evidence, but despite availing various adjournments they remained fail to lead any evidence and the learned trial court dismissed the suit for want of evidence vide judgment and decree dated 11.10.2004. The petitioners went in appeal, which was accepted and the suit was remanded for its decision afresh with a direction to grant only two opportunities to the petitioners to produce their evidence before the learned trial court. It is again another gloomy aspect of the case that in spite of that appellate court had granted only two opportunities to the petitioners to lead evidence, the trial court once again closed the eyes and awarded 14-opportunities to the petitioners to conclude their evidence spreading over a period ranging from 17.06.2006 to 19.06.2007 without keeping in mind the judgment of the learned lower appellate court, which conduct of the judicial officer (Tariq Saleem Chohan, Civil Judge) is condemnable. Such practice conducted by the judicial officer should be checked by the District Judges under whom command the civil judges are functioning.

4. After conclusion of evidence of the petitioners, it is also vivid from the record that on each and every date of hearing the respondents brought their witnesses before the learned trial court, but the same could not be recorded for the one or the other pretence put forward by the learned counsel for the petitioners. It is gleaned from the case diary maintained by the learned trial court that on 23.04.2009 five witnesses of the respondents were present whereas on 09.5.2009, 12.05.2009, 14.05.2009 and 19.05.2005(sic) four witnesses were brought by the respondents for recording their statement but they could not be examined due to the delaying attitude of the petitioners and on 28.5.2009 when the examination-in-chief of DW1 to DW5 was recorded by the learned trial court, the counsel for the petitioners instead of cross-examining the said witnesses slipped away from the court room without any information and the trial court was left with on other option except to struck off the right of cross-examination of the petitioners. The interlocutory order dated 28.05.2009 passed learned trial court in verbatim is reproduced hereunder The above referred order was assailed by the petitioners by filing a revision before the learned lower revision court, which came up for hearing before learned Additional District Judge, Chunian and was dismissed vide impugned judgment dated 05.10.2009.

5. The attitude adopted by the petitioners during the trial of suit, which was filed 13-1/2 years ago is a clear example that the petitioners are playing delaying tactics to linger on disposal of the suit in order to deprive the respondent No.1, who is real sister of petitioner No.1 from the fruits of her land, which is in possession of the petitioners on the basis of alleged receipt dated 22.05.1995. It is the prime duty of the courts to ensure that the cases are decided on merits as early as possible and it cannot be left at the choice of the parties to linger on the matter for illegal gain in the aid of injunctive orders usually issued by the courts during the pendency of the suit to maintain harmony and peace between the parties. The case diary maintained by the learned trial court shows that the petitioners initially tried their best that the DWs should not be examined, who had been appearing on successive dates and when ultimately, the defendants succeeded to get recorded 5-DWs on 28.05.2009, the learned counsel for the petitioners did not appear in the court and plaintiff No.1 remained present during the recording of statement of DW.1 to DW.4 and slipped away from the court when statement of DW.5 was in progress, without any information to the learned trial court and thereafter neither plaintiff No.1 nor his counsel appeared to cross-examine the DWs. As such the learned trial court has rightly passed the impugned order for closing the right of cross-examination as the witnesses cannot be allowed to be treated just like accused for appearance in the courts to give evidence in a case for the benefit of the parties concerned. In such facts and circumstances, I do not find any illegality, perversity or jurisdictional defect to have been committed by the learned courts below while passing the impugned judgment/order and this writ petition having no merits is dismissed.

6. Before parting with the judgment I would like to comment that this court time and again has passed directions to the subordinate courts/District Judiciary for strict compliance of the directions embodied in the orders/judgments passed by Appellate/Revisional/Superior Courts, but lethargic attitude of some of the judicial officers in this regard is highly condemnable, which is a main factor that the confidence of the litigants is being shaken upon the judicial institutions. The instant case conducted by the above referred judicial officer is its classic example. The copy of this judgment should also be placed in the service file of the said officer by the Registrar of this court, who is also directed to circulate the copy of this judgment to all the judicial officers of the subordinate courts through the learned District and Sessions Judges in the Punjab with a clear cut understanding that in future, non-compliance of directions embodied in the judgments/orders delivered by the Revisional/Appellate/Superior Courts will not be excused. MM/M-75/L Petition dismissed.