1999 PLP 818 (MLD)

4. During the proceedings before the Senior Civil Judge, notices were issued to the parties, issues were framed and the evidence of the petitioner respondent, was recorded. His evidence was, however, closed on 8-11-1989. Thereafter, the respondents-appellants were directed to adduce their evidence on 17-2-1989 but due to some reasons the evidence of the respondents-appellants could not be recorded and several notices were given to them to produce their evidence but they failed to do so. However, on 8-7-1992 last chance was given to them to produce their evidence on 8-8-1992. On the said date the parties were present but the Presiding Officer was on Camp duty at Boni. Upon the Reader's note the case was adjourned to 8-9-1992, 1-10-1992 and finally on 29-10-1992 (on three occasions) when the learned Senior Civil Judge passed the impugned order under Order 17, Rule 3, C.P.C. against the present appellants as the evidence of the respondents-appellants were not available on the said date though there is an indication in the order sheet of the said date that there were applications requesting adjournments on behalf of the official witnesses.

5. It is important to mention here that on 28-10-1992 Syed Jalalud Din, S.D.O.C & W Chitral and Naib-Tehsildar Chitral had moved two separate applications wherein they had shown their inability to attend the Court on 29-10-1992 as they were busy in some official duty outside Chitral.

6. It is true that on account of the non-appearance of the witnesses, the Court can close evidence of a party, if it fails to produce its witnesses on the said date despite warnings, but in the instant case, sufficient cause was given by the witnesses for adjournment. Besides, Rule 3 of Order 17 C.P.C. is permissive and is discretionary. The Courts, therefore, should be very careful in passing judicious and legal orders by giving reasonable opportunity to the other party before passing any order in haste. No opportunity in the instant case was given to the respondents-appellants to produce their evidence and to impeach the testimony of the witnesses of the petitioner-respondent already recorded by the Presiding Officer himself prior to 29-10-1992. On an earlier occasion the case had been adjourned by Reader's note which according to law has no legal sanction for adjournment, as the Reader of the Court cannot adjourn the case and give directives for further proceedings. The law on the subject is that after the Reader's note it is incumbent on the Presiding Officer to pass a fresh order and E serve notices on the parties for further proceedings. Violation of such order would of course justifying the Presiding Officer to pass order under Order 17, Rule 3, C.P.C. The intervening reader's notes, therefore, have no authenticity.

7. The trial Court has discussed the merits of the petition on issues Nos.2, 3 and 5 in which the claim of the petitioner-respondent in respect of the damage caused to his property and his prayer of Rs.70,000 has been discussed in detail, but disagreed with the claim of the petitioner-respondent as the same was not supported by any cogent evidence. The Court has observed that the construction material was available at the spot and the petitioner-respondent had to meet only masonry charges and that the damage caused to his property was meagre in nature, yet the learned Senior Civil Judge calculated the amount of damage of his own by adopting the rule of thumb and by using his personal knowledge, therefore, the compensation according to him was worked out as follows:- Damage for Veranda Rs.8,000 Damage to the two rooms Rs.7,200 Damage to the wall Rs.10,000 Total amounting to Rs.25,000

8. Since the petitioner-respondent had received Rs.7,600 under protest, therefore, according to the learned Senior Civil Judge he was entitled to the enhanced compensation of Rs.17,600 alongwith interest on the said amount at the rate of 6 `7, per annum from the date of damage till the date of damage till the date of actual payment.

9. Having considered the matter, aforesaid, I am of the view that the learned Senior Civil Judge has not personally given the last and final opportunity to the respondents-appellants to adduce their evidence and has ignored the applications for adjournments made by the official witnesses. Therefore, in the circumstances of the case, refusal to adjourn the case or to close evidence of the defence was not warranted. In the present case a revision petition Civil Revision No.139 of 1993 against the order of the Senior Civil Judge Chitral dated 29-10-1999 was moved before this Court but the appellants had also filed the present appeal under section 54 of the Land Acquisition Act against the said judgment and decree which was dismissed as withdrawn. Therefore, in the present appeal the matter is re-opened as a whole. I feel that the appeal has merit which is accepted, the impugned order of the Senior Civil Judge Chitral dated 3-3-1993 is set aside and the case is remanded back to him for giving an opportunity to the appellants to adduce their evidence in accordance with law and thereafter, decide the matter afresh. The respondent namely Hisamul Ahmad need not produce any evidence again. The learned Senior Civil Judge is directed to expedite the matter and the appellants shall be given last and final opportunity to produce their evidence before him on a positive date to be fixed by him. If the appellants failed to produce any evidence it shall be deemed to have been closed. The office is directed to send back the entire record to the Court concerned and the Court shall positively give final decision within three months i.e.. upto 30-10-1998 with an intimation of his findings to the Registrar of this Court. No order as to costs. A. A./172/P/ Case remanded.