2005 PLP 1736 (CLC)

Instant revision petition assailed judgments/decrees dated 10-10-1998 and 25-7-2000 passed by the learned Civil Judge and learned Additional District Judge, Rawalpindi, whereby petitioners' suit and appeal were dismissed, respectively.

2. Succinctly, relevant facts are that petitioner No.1 claiming herself to be a widow of deceased Anwar Aftab along with her two minor children filed a suit for permanent/mandatory injunction to the effect that they being descendents of the deceased were entitled to pensionery, gratuity and G.P. Fund benefits of late Anwar Aftab, who breathed his last on 15-5-1995.

3. Respondent No.1 who is also a widow of late Anwar Aftab being defendant in the suit contested the same by filing her written statement, wherein she denied status of the petitioners as heirs/legal representatives of the propositus. Respondents Nos.2 and 3 also contested the claim of the petitioners by filing their separate written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. During the course of recording of evidence, learned counsel for the petitioners after recording statements of three P.Ws., wished to produce further evidence but the request was declined by the trial Court vide order dated 29-7-1998 by invoking provisions of Order XVII, rule 3, C.P.C. on the ground that the case was lastly adjourned on their request and in presence of direction to this Court to conclude trial expeditiously, case cannot be adjourned. The trial Court after recording of evidence of the respondents/defendants dismissed the suit or the petitioners vide judgments/decree dated 10-10-1998.

4. Petitioners being aggrieved of the decision of the trial Court filed an appeal before the learned Additional District. Judge where they specifically raised an objection to closure of their right to lead evidence vide order 29-7-1998, but remained unsuccessful as the same was dismissed on 25-7-2000. Petitioners thereafter filed instant revision petition, which was admitted to regular hearing and after completion of record has now been placed for final determination. Respondents, in response to notice by this Court, have appeared and are represented through counsel.

5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Petitioners' right to produce evidence in support of their case was closed by the trial Court on 29-7-1998 and they while assailing final judgment/decree in the suit raised a specific plea about incorrect invocation of provisions of Order XVII, rule 3, C.P.C., but the learned Additional District Judge while deciding the appeal, has not adverted/addressed to this aspect of the case. Learned counsel for the petitioners stated at the Bar that this point was specifically argued at the time of hearing of appeal, but the same remained undecided, out of inadvertence of the Appellate Court. Since the dispute in between the widowed ladies, I deliberately avoided to remit this case to the Appellate Court for decision about applicability of provisions of Order XVII, rule 3, C.P.C. and decided to resolve this controversy in the revision petition to avoid wastage of time.

6. Evidence of the petitioners stood closed on 29-7-1998 on account of their lapse to produce the remaining evidence, as according to the trial Court, case had been adjourned on their request. The interim order on the preceding date i.e. 3.27-7-1998 revealed that request for adjournment of the case was made by the petitioners on account of indisposition of their counsel, which was not opposed by the respondents/defendants. Petitioners were not warned that they will not be granted anymore opportunity to produce evidence and at the same time, they were not penalized with anything, like costs etc. Adjournment of case from 27-7-1998 to 29-7-1998 appears to be through a routine order on the basis of which penal provisions of Order XVII, rule 3, C.P.C. could not have been invoked. This view gets strength from judgment by the Honourable Supreme Court in the case of Syed Tasleem Ahmad Shah v. Sajawal Khan and others 1985 SCMR 585, wherein adjournment had not been objected by the plaintiff on earlier date and on the basis of it, order of closure of evidence of the defendant under Order XVII, rule 3, C.P.C. was set aside and the case was remanded for fresh decision after affording opportunity to the defendant to produce evidence. Alike view was taken by the Honourable Supreme Court in Haji Muhammad Ramzan Saifi v. Mian Abdul Majid and others PLD 1986 SC

129. Respectfully following the dictum above noted, I am of the considered view that evidence of the petitioners could not have been closed on the basis of a routine order, as observed above.

7. Since the petitioners were not afforded proper/full opportunity of proving their case under a fake cover of direction by this Court to conclude the proceedings expeditiously which did mean that rights of the parties should be curtailed by incorrectly applying provisions of law, which were not applicable. Record of the trial Court revealed that in spite of closure of evidence of the petitioners on 29-7-1998, the case was not decided till 10-10-1998 and there are more than two intervening dates, hence grant of another opportunity by fixing case after couple of days, would have brought nothing adverse to the direction issued by this Court. As a matter of fact, a fake shelter under the directions by this Court was taken to deprive the petitioners of their right to produce evidence which course cannot be justified on the basis of any canon known for administration of justice.

8. For the reasons noted above, I am constrained to hold that petitioners evidence was illegally closed by the trial Court vide order dated 29-7-1998 and structure thereover, by subsequent judgments/ decrees by the trial/Appellate Court cannot be allowed to remain intact. This revision petition is consequently accepted and besides setting aside judgments/decrees dated 10-10-1998 and 25-7-2000 passed by the learned Civil Judge and learned Additional District Judge, Rawalpindi, order dated 29-7-1998 by the trial Court is set aside, subject to payment of costs of Rs.1,000, with the result that suit of the petitioners shall be deemed to be pending before the trial Court, who shall afford one final opportunity to the petitioners for producing their entire evidence by fixing a specific date for this purpose and would decide the suit afresh in accordance with law. Parties are directed to appear before the trial Court on 12-7-2005. H.B.T./G-130/L Case remanded.