2001 PLP 301 (YLR)

‑‑‑‑O. XXXVII, Rr. 2, 3 & O. XVII, R.3‑‑‑Suit for recovery of money‑‑‑After concluding evidence of the plaintiff, while the evidence of the defendant was in progress, and statement of defendant's witness was being recorded, the Court directed the defendant to leave the Court‑room and closed the evidence of the defendant‑‑‑Validity‑‑‑Defendant being party to the litigation could not, in any circumstances, be directed by the Court to leave the Court‑room‑‑‑Trial Court could not pass such order under any provision of C. P. C. or the High Court Rules and Orders‑‑‑Trial Court had transgressed its authority and had passed an illegal order, not only in issuing such direction to the defendant, but by closing his evidence when his witness was present and evidence was in the process of being recorded‑‑‑Order of the Trial Court was set aside in circumstances. S.M. Mohsin Zaidi for Petitioner. Nemo for Respondent. Despite service, none has appeared on behalf of the respondent, therefore, he is proceeded ex parte.

2. Respondent tiled a suit for recovery against the petitioner under Order XXXVII of C.P.C., which was contested by the petitioner; after grant of leave to the petitioner, issues were framed; the evidence of the plaintiff/respondent was concluded, while the evidence of the petitioner was in progress, and statement of D.W.1 was being recorded, the learned Court noticed the presence of the petitioner, in the Court‑room and directed him to leave the Court. This was objected to by the petitioner's counsel, that he being party to the litigation, cannot be directed to leave the Court‑room on which learned trial Court ordered that his statement be recorded before the statement of any other witness. This again was resisted by the petitioner's counsel. Anyhow, learned trial Court, passed the following order:‑‑‑ "It is needless to mention here that this is a summary suit instituted under Order 37, C.P.C. and the defendant has already availed no less than 12 opportunities and the case is pending of recording evidence of the defendant since 30‑10‑1999. In this view of the matter, evidence of the defendant is hereby closed.

2. It is argued by learned counsel for the petitioner that the order passed is totally without jurisdiction and against the provisions of Order 17, Rule 3, C.P.C. Petitioner being party to the litigation could not in any circumstances, be directed by the Court either to leave the Court‑room during the course of recording the evidence of his witness or to get his statement recorded before the other witnesses.

3. I have heard learned counsel for the petitioner and find that the plea raised is perfectly correct. Learned trial Court has erroneously directed the petitioner, who was a party to the litigation to leave the Court?room or to get his statement recorded first before examining any other witness; there is no provision in the C.P.C. or High Court Rules and Orders, in which, the trial Court could pass the above order. Learned trial Court undoubtedly, has transgressed his authority and has passed an illegal order, not only in the first instance issuing direction to the petitioner as mentioned above, but by closing the petitioner's evidence, when the evidence was present and in the process of being recorded. Therefore, the impugned order is set aside. Office is directed to convey this order to the learned trial Judge, who should refrain from passing such orders in future, because it is these kind of orders which add to the burden of the judicature and suffering of the litigating public. This petition is accordingly allowed. H.B.T./M‑642/L????????????????????????????????????????????????????????????????????????????????? Petition allowed.