2002 PLP 3151 (YLR)

Ch. Abdul Wahid for Respondents. Date of hearing: 23rd May, 2002. Through this civil revision, petitioner has challenged order dated 12‑3‑2001 passed by learned Civil Judge, Lahore dismissing petitioner's two applications respectively under Order XIII Rule 2, C.P.C. and Order XVIII Rule 17, C.P.C. in a pending suit titled "M/s M.S Construction Company Limited v. National Sugar Industries".

1. By consent of the learned counsel for the parties, this case is treated as admitted/Pacca and is being decided today.

2. Learned counsel for the petitioner states that the learned Civil Judge passed this order on wrong presumption that both the parties had concluded their evidence and the case was fixed for final arguments, when the above stated two applications were moved. It is further contended that order sheet will show that petitioner as defendant was leading his first witness namely Ghulam Nabi as D.W.1 and he was still in the witness box when the above stated two applications were moved.

3. Confronted with this situation, learned counsel for the respondent conceded that the learned Civil Judge has passed order dated 12‑3‑2001 on wrong presumption and incorrect reading of record. Learned counsel for the respondents admitted that evidence of the defendant had not been concluded and the case had not been fixed for final arguments. It was also conceded that the case was at the stage of recording deposition of first witness of defendant i.e. D.W.1 Ghulam Nabi. Learned counsel for the respondent, however, stated that order sheet will show that petitioner/defendant does not deserve and indulgence for the reason that for years, progress of the case was obstructed with mala fide objective to delay the conclusion of the suit to damage the respondent/plaintiff. (4‑A). Be that as it may, learned counsel for the respondent conceded that the impugned order dated 12‑3‑2001 was passed on misreading, of record and on incorrect premises and grounds. He, therefore, joined learned counsel for the petitioner for setting‑aside the said order and remanding back the case to the learned Civil Judge seized of the civil suit to re decide the two applications within a period of fifteen days. Learned counsel for the respondent, however, requested for imposition of heavy costs on the petitioner and for fixation of time in the civil suit.

5. I have examined the impugned order dated 12‑3‑2001 passed by learned Civil Judge. It has been correctly stated by the learned counsel for the parties that the learned Civil Judge not only misread the record of the suit. and order sheet but passed the impugned order on the basis of incorrect premises and grounds not borne out by record of the case. The learned Civil Judge passed the impugned order on the basis that petitioner defendant has concluded his evidence and the case was fixed for final arguments when the above stated applications were made. This observation exhibits total inapplicability of judicious mind. Learned Civil Judge does not seem to have read his own order sheet and previous orders. The case was admittedly at the stage of defendant's evidence and first witness of the defendant was being recorded as D.W.1. It was during recording of evidence that the above said applications were made. It is a pity that parties, in particular respondent, have been put to inconvenience and expense or filing/defending the present civil revision against a patently erroneous order. This has also caused un‑necessary delay in the conclusion of the suit. However, parties cannot be made to suffer for act of the Court, how erroneous and misconceived such an act may be. Since the patent error on record was caused by inapplicability of judicious mind of the learned Civil Judge, therefore, it is not a fit case of imposition of costs on the petitioner but it is certainly an appropriate case to accept the present civil revision in terms of the request jointly made by the learned counsel for the parties.

6. In view thereof, the impugned order dated 12‑3‑2001 is set‑aside. The above said applications shall be deemed to be pending before the learned Civil Judge, who shall decide the same without fail within a period of fifteen days.

7. I am informed by the learned counsel for the parties that the civil suit is pending for 24‑5‑2002. Parties shall inform the learned Civil Judge of the order passed by this Court and petitioner shall produce certified copy of this order before the learned Civil Judge to enable him to decide the above said applications within a period of fifteen days in accordance with law. It will be appropriate to observe that the suit filed by the respondent for recovery of money against the petitioner defendant is pending since 9/10 years. The learned Trial Court shall ensure expeditious disposal of the same for avoidance of further suffering of the parties in particular that of the respondent plaintiff. This petition is accepted in above terms. Copy dasti shall be provided to the learned counsel for the petitioner. Parties are left to bear the own costs. S.A.K./N‑191/L????????????????????????????????????????????????????????????????????????????????? Case remanded.