2006 PLP 1147 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

This civil revision assails order dated 19-6-2004 passed by learned Additional District Judge, Mianwali, whereby evidence of the petitioner was closed under Order XVII, rule 3, C.P.C. and his application for summoning of witnesses was dismissed.

2. Precisely, relevant facts are that the respondent filed a suit under Order XXXVII, rule 1, C.P.C. for recovery of Rs.4,75,000 on the basis of a pro note dated 4-9-2002 wherein the petitioner being defendant filed an application, seeking leave to defend the suit, filed by him within the statutory period which was accepted by the learned trial Judge on 28-3-2004.

3. The petitioner being defendant in the suit contested it by filing his written statement wherein execution of pro note out of free-will and payment of consideration thereunder was denied. The learned Additional District Judge, out of controversial pleadings of the parties, framed issues on 12-4-2003 and fixed the case for evidence of the respondent/ plaintiff. The defendant filed his list of witnesses on 16-4-2003, within the statutory period of seven days from framing of issues. The respondent/plaintiff concluded his evidence on 30-4-2003 whereafter the case was fixed for evidence for the petitioner/defendant who on three consecutive dates failed to produce evidence hence, his right to produce evidence was closed under Order XVII, rule 3, C.P.C. vide order dated 19-6-2004 and the case was adjourned for arguments. The petitioner aggrieved of action against him under Order XVII, rule 3, C.P.C. has filed instant revision petition. The respondent in response to notice by this Court has appeared and is represented through his counsel.

4. Learned counsel for the petitioner submitted that after framing of issues, petitioner's evidence was closed within a period of two months by granting only three opportunities to which the respondent did not object on any of the dates and thus, the action taken by the trial Court is not only harsh but is also contrary to the provisions applied which, according to him, were not attracted. It was further contended that the interim orders passed by the learned trial Judge adjourning case for evidence of the petitioner, reveal that the respondent did not object to the adjournments rather concurred to those, hence, in view of law laid down by the Honourable Supreme Court in the case of Syed Tasleem Ahmad Shah v. Sajawal Khan others (1985 SCMR 585) orders adjourning the case will be considered routine orders on the basis of which right to lead evidence could not have been struck. It was further argued that after grant of leave to defend the suit, which had been claimed on the basis of denial of the execution of the pro note, order impugned will work in aid of injustice, as suit of the respondent will be decreed without contest. Learned counsel for the petitioner also submitted that the petitioner had filed application for summoning of witnesses named in his list, originally filed within seven days after framing of issues but the same has erroneously been turned down in haste which also negatively reflected on the order? passed by the trial Court. It was also claimed that witnesses sought to be summoned through process of the Court could not be produced by the petitioner, without the prayed process hence, permission to summon those witnesses should have been allowed.

5. Learned counsel appearing on behalf of the respondent refuted the arguments of the petitioner, supported the impugned order and argued that the petitioner was granted ample time/ opportunity of producing evidence but he deliberately failed whereupon a lawful action has been taken by the learned trial Judge. A reference to order dated 7-6-2004 the date from which the case was adjourned, was also made to contend that case had been adjourned on request of the petitioner so the provisions applied were correctly invoked.

6. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. The interim orders dated 30-4-2004, 21-5-2004 and 7-6-2004 passed by the trial Judge clearly mentioned that the respondent/plaintiff did not object to the adjournment of the case on each occasion. The tenor of these orders show that case kept on adjourning in routine on each of these three dates. The Honourable Supreme Court while dealing with the case of alike circumstances very graciously held in the case of Syed Tasleem Ahmad Shah (Supra) that routine adjournment of the case, does not furnish basis for applying punitive provisions of Order XVII, rule 3, C.P.C. I, respectfully following the dictum laid down by the Honourable Supreme Court hold that order dated 7-6-2004 adjourning the case to the date on which right to lead evidence of the petitioner was struck, was a routine order to which the respondent had concurredhence, on the basis of it, action taken was not justified/lawful.

7. Though the learned trial Judge has remarked in the impugned order that the respondent has failed to appear in the witness box or to produce his witnesses but there is nothing on the file to assume that the petitioner/defendant was required to come in the witness box and to make statement in support of his case in written statement or to produce evidence, documentary or oral, in his possession. It is settled proposition that at the time of taking an action under Order XVII, rule 3, C.P.C. of closing evidence, the party concerned, has to be required to make at least his statement and to produce whatever evidence was available with him but no such exercise was undertaken at the time of passing the impugned order which negatively reflects thereon. The petitioner had filed his list of witnesses in terms of Order XVI, rule 1, C.P.C. within the statutory time of seven days and two of the witnesses out of this list were prayed to be D summoned through Court. This application was dismissed after closing evidence of the petitioner whereas it should have been decided earlier to the invocation of provisions of Order XVII, rule 3, C.P.C. The witnesses sought to be summoned were Record-keeper, Office of Zila Nazim and Moharrir, police station city, Mianwali who were to produce the summoned record. These witnesses could not be produced by the petitioner without intervention of the Court but no lawfully reason has been assigned in the impugned order for refusal to summon them. The trial Judge being oblivious of the provisions of Order XVI, rule 7-A, C.P.C. regarding handing over of summons of the witnesses to the party concerned for service and those, relating to summoning of witnesses required to produce documents, illegally dismissed the application for the petitioner.

8. Law favours decision of the cases on merits instead of knocking down the parties on mere technicalities. Record reveals that in spite of action against the petitioner, the case was not instantly decided and was adjourned for arguments. Had the case been adjourned by allowing summoning of witnesses by resort to the above-referred provisions of law, subject to compensatory costs to the petitioner, the ends of justice would have been met because order granting leave to defend to the petitioner was a prima facie proof of plausible defence available with the petitioner. The deprivation of right to lead evidence, would result in injustice as the respondent will be granted a money G decree for a huge amount claimed in his plaint, without contest. The respondent may get the decree in case he succeeds in the suit but fair right to defend the suit, should have been granted but this aspect of the case escaped notice of the trial Court.

9. For what has been discussed above, I am constrained to hold that order dated 19-6-2004 is illegal and unauthorized thus, the same cannot be allowed to be sustained. This petition resultantly is allowed and the above-referred order is declared as prayed with the result that the petitioner will be granted two opportunities of producing his evidence, including the summoned witnesses who shall be got served by the petitioner at his own responsibility, on the dates to be fixed by the trial Court, subject to payment of costs of Rs.5,000 to the respondent. In case the petitioner fails to produce his entire evidence on two dates, as observed above, the trial Court may proceed against him in accordance with law. There will be no order as to costs. F.M./M-733/L???????????????????????????????????????????????????????????????????????? Petition accepted.