2019 PLP 108 (CLC)

JAWAD HASSAN, J.

Through this petition, the Petitioner has assailed the validity of impugned order dated 09.10.2017 passed by the Respondent No.1 whereby the Civil Revision filed by the Respondents was accepted and they were allowed to cross-examine the Petitioner's witnesses.

2. The learned counsel for the Petitioner submitted that the Petitioner filed a suit for declaration against the Respondents in which the Court after receiving written statement framed issued on 07.05.2011 and recorded the examination-in-chief of the Petitioner's witnesses; that the Respondents were afforded ample opportunities to cross-examine the Petitioner's witnesses but they remained failed; that even on one date the learned counsel for the Respondents was present but did not cross-examine the witnesses which shows the conduct of the Respondents towards prolonging the matter; that the Respondents were given final opportunity, absolute final opportunity and thereafter extreme absolute final opportunity but in vain; that the right of the Respondents to cross-examine the witnesses was rightly closed by the Civil Court; that the impugned judgment was passed by the Respondent No.1 without taking into consideration the true facts; that the impugned judgment is result of misreading and non-reading of material available on record. To fortify his contentions learned counsel has placed reliance on the case titled Rana Tanveer Khan v. Naseer ud Din and others (2015 SCMR 1401) and Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others (2014 SCMR 637).

3. This Court issued repeated notices to the Respondents but they did not appear and thereafter proclamation in the newspaper daily "Duniay" was also issued but no one appeared on their behalf, hence, they were proceeded against ex-parte.

4. I have heard arguments advanced by the learned counsel for the Petitioner and perused the record minutely.

5. From the perusal of the record it transpires that the Respondents firstly were proceeded against ex-parte by the Civil Court and thereafter they were afforded opportunity to contest the suit. The record also reveals that Respondents were afforded colossal opportunities to cross-examine the witnesses of the Petitioner including absolute final opportunity and also with fine but they remained failed, therefore, the Civil Court rightly passed order dated 13.03.2017 by closing the right of cross-examination of the Respondents. Another aspect of the matter is also to be taken into consideration i.e. the conduct of the Respondents, as they neither, before the Trial Court showed their seriousness and delayed the matter on the one pretext or the other nor appeared before this Court. It is well settled maxim that delay of justice is denial of justice, therefore, to ensure the compliance of orders of the Court for the expeditious decisions of the matters law provides mechanism which is to be followed and the either party has to suffer the consequences in case of non-compliance thereof. Reliance in this regard can be placed on the Rana Tanveer Khan case supra in which the Hon'ble Supreme Court of Pakistan has held as under: "Once the case was fixed by the Court for recording the evidence of the party, it was the direction of the Court to do the needful, and the party had the obligation to adduce evidence without there being any fresh direction by the Court. However, where the party made a request for adjourning the matter to a further date(s) for the purposes of adducing evidence and if it failed to do so, for such date (s), the provisions of Order XVII Rule 3, C.P.C. could be attracted, especially in the circumstances when adequate opportunities on the request of the party had been availed and caution was also issued on one of such date (s), as being the last opportunity. In the present case, the plaintiff-Appellant had availed four opportunities to produce his evidence and was cautioned on two such occasions, which meant that the plaintiff was put to notice that if he failed to adduce evidence, action shall be taken against him. When evidence of plaintiff was closed in terms of O.XVII, R.3, C.P.C. no reasonable ground was propounded for the purposes of failure to adduce the evidence and justification for further opportunity, therefore, notwithstanding that such opportunities granted to the plaintiff were only in a span of about 1 month and 26 days, yet his case squarely fell within the mischief of the provisions of O.XVII R.3, C.P.C. and his evidence was rightly closed by the Trial Court."

6. In view of the above situation, the Respondents No.1 has failed to appreciate the facts and circumstances of the case in its true perspective, therefore, his view cannot be sustained being contrary to the dictum laid down by the Hon'ble Supreme Court of Pakistan in the above referred judgment. Resultantly, the petition is hereby accepted and the impugned order, dated 9-10-2018 is hereby set aside. SA/M-146/L Petition accepted.