1991 PLP 1219 (SCMR)

(b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑‑OXVII, R.3‑‑‑Closing of evidence by trial Court‑‑‑Effect‑‑‑After the order of trial Court had been set aside by the Appellate Court, the question of deciding the case forthwith which is the essential requisite of R.3 of OXVII, C.P.C. did not arise‑‑‑No impediment thus was left in the way of plaintiff or his attorney from appearing in the witness‑box in support of his case. (c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑‑OXVII, R.3‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Closing of evidence by Trial Court‑‑‑Appellate Court setting aside order of closing of evidence, allowed evidence of one witness to be recorded‑‑‑After recording statement of that witness Trial Court refused to record statement of plaintiff's attorney‑‑‑Supreme Court remanding the case directed the Trial Court to proceed further with the trial of suit, after giving plaintiff or his attorney an opportunity to appear as a witness. Shaukat Ali, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on -Record for Petitioner. Malik M. Azam Rasul, Advocate Supreme Court and M. Aslam Chaudhry, Advocate‑on‑Record for Respondents Nos.l to

4. Khaqan Baber, Advocate Supreme Court and Hamid Aslam Qureshi, Advocate‑on‑Record for Respondents Nos.l to

4. Date of hearing: 30th October, 1989. SAAD SAOOD JAN, J.‑‑‑On 21‑2‑1987 the petitioner in this petition for special leave to appeal filed a suit for specific performance of an agreement of the sale of a plot in New Gardan Town, Lahore. The suit was resisted by the respondents. On 26‑11‑1987, the trial Court framed a number of issues and called upon the petitioner to lead his evidence. On 30‑1‑1989 when the evidence of the petitioner had been partly recorded, the trial Court made an order purportedly under Rule 3 of Order XVII, Civil Procedure Code closing his evidence on the ground that despite several opportunities given to him he had failed to produce all his witnesses. It then called upon the respondents to lead their evidence. The petitioner filed a revision petition before the Additional District Judge to call in question the legality of the order of the trial Court. Before the Additional District Judge he inter alia stated that he wanted to produce one Mansab Ali only in support of his case. By an order dated 16‑4‑1989, the learned Additional District Judge accepted the revision petition and directed the trial Court to permit the petitioner to examine Mansab Ali as his witness. The trial Court appointed 26‑4‑1989 as the date for recording the evidence of Mansab Ali. On that day, both the petitioner's attorney and Mansab Ali were present in the Court. The learned trial Court examined Mansab Ali. Immediately thereafter the petitioner's attorney wanted to get his own statement recorded. The learned trial Court declined to record his statement on the ground that under the order dated 16‑4‑1989 of the Additional District Judge he had been permitted to examine only one witness, namely, Mansab Ali. From the order of the learned trial Court, the petitioner once again filed a revision petition before the Additional District Judge. It was dismissed. The petitioner then filed a writ petition in the High Court which too failed. He now seeks leave to appeal from this Court.

2. After hearing the learned counsel appearing for the parties, we are of the opinion that the learned trial Court committed a material irregularity in the exercise of its jurisdiction by not allowing the petitioner's attorney to appear as witness. No doubt, by the order dated 16‑4‑1989 the Additional District Judge had permitted the petitioner to examine Mansab Ali alone but then the controversy before him was confined to the question whether before closing his evidence the trial Court had given sufficient opportunity to the petitioner for procuring the attendance of this witness. He decided this question in favour of the petitioner. Accordingly, he set aside the order of the trial Court and directed it to give an opportunity to the petitioner to examine the said witness. The further question whether the petitioner or his attorney stood debarred from giving evidence in support of his case, did not arise for consideration before the learned Judge. In the circumstances his order could not be construed so as to exclude the petitioner or his agent from getting his statement recorded. There is another aspect of the matter also. Whenever, a Court makes an order under Rule 3 of Order XVII, ibid, it is required to proceed to decide the suit forthwith. After the order of the trial Court had been set aside by the Additional District Judge, the question of deciding the suit forthwith did not arise. There was thus no impediment left in the way of the petitioner or his attorney from appearing in the witness‑box in support of his case.

3. For the reasons stated above, we convert this petition into appeal, declare the order of the trial Court dated 21‑5‑1989 to the extent that it debarred the petitioner or his attorney from appearing as his on witness and of the Additional District Judge dated 24‑5‑1989 to be without lawful authority and of no legal effect. The trial Court may now proceed further with the trial of the suit after giving the petitioner or his attorney an opportunity to appear as a witness. There will be no order as to costs. AA./M‑1201/S Appeal accepted.