2014 PLP 497 (MLD)

MEHMOOD MAQBOOL BAJWA, J.

Present respondent instituted suit for possession through partition, mesne profit and perpetual injunction against the petitioner. As there was contest, therefore, the learned trial Court after casting issues, arising out of pleadings of the parties, recorded the evidence of respondent being plaintiff requiring the petitioner being defendant to produce its evidence. Ali Mazhar Nawaz, appeared as DW.1 at the instance of petitioner who made statement in consultation with record of the Defence Housing Authority. During cross-examination request was made at the instance of respondent for examination of the record, upon the strength of which said witness made statement before the Court as DW.1 which application was declined vide order dated 19-12-2011 and the said order was called in question by filing Civil Revision No. 3746 of 2011 which was allowed vide order dated 19-1-2012. After that learned trial Court asked the petitioner to produce the record in mandate of order of this Court. Despite seeking adjournments the petitioner failed to produce the requisite record as is evident from the orders dated 28th of January, 2nd of February, and 8th of February 2012 and as such last opportunity was afforded to the petitioner for 10th of February 2012 for production of record in order to complete the statement of Ali Mazhar Nawaz, whose statement was recorded as DW.1. On 10-2-2012 again request was made at the instance of petitioner in similar fashion which was seriously opposed by learned counsel for the respondent. However, conditional premium was shown at the instance of respondent to grant the adjournment to the petitioner with the undertaking of its counsel to produce the record within next 2, 3 days. However, learned counsel for the petitioner flatly refused to give such undertaking contending that it is the matter falling within the domain of Board of Defence Housing Authority, who used to produce the record according to its own mode. In the attending circumstances learned trial Court closed the right of the petitioner and deleted the statement of Ali Mazhar Nawaz as DW.1 by granting another opportunity to the petitioner for 14th February 2012 for remaining evidence specifically stating that it is a direction case. On 14-2-2012, evidence of the petitioner, oral as well as documentary, was not available resulting in closure of same.

2. Learned counsel for the petitioner while assailing the vires of order dated 14-2-2012 contended that since date was not fixed at the request of petitioner, therefore, penal provision of order XVII rule 3 of The Code of Civil Procedure, 1908 could not be applied to the facts of the case. While focusing its attention to the order dated 10-2-2012, it was maintained that there is no enabling provision for scoring out the statement of Ali Mazhar Nawaz (DW.1). On the other hand, learned counsel for respondent while making reference to the different interim orders maintained that the petitioner failed to produce record upon the strength of which statement was made by the witness (D.W.1) and as such there was no option with the learned trial Court but to close the statement of said witness. Contended that sufficient opportunities were granted to the petitioner for production of evidence and last opportunity was awarded to the petitioner for 14-2-2012, who failed to produce the evidence, oral as well as documentary, on the notified date and as such no exception can be taken to the said order as well.

3. It is not disputed that statement of Ali Mazhar (DW.1) was recorded who was partly cross-examined and during the course of cross-examination request was made by learned counsel for respondent being plaintiff to the learned trial Court to ask the witness to produce the record of land branch of Defence Housing Authority, upon the strength of which he made the statement which request was declined vide order dated 19-12-2011 but the revision petition filed by respondent was allowed vide order dated 19-1-2012. Certified copy of interim order sheet reveals that present petitioner was asked to produce the record as well as the said witness on 28th of January, 2nd of February, 8th of February and then 10th of February 2012 by granting last and final opportunity but the petitioner failed to produce the same and that too without any justification. Perusal of order dated 10-2-2012 clearly suggests that some concession was going to be made at the instance of respondent to grant adjournment for next 2, 3 days for production of record and witness subject to undertaking to be made at the instance of learned counsel for the petitioner but the learned counsel for the petitioner flatly refused to make such undertaking contending that it is a matter falling in the exclusive domain of Board of Defence Housing Authority. Seeking adjournments in order to produce the record and failure of petitioner to produce the same ultimately and categorical refusal on the part of counsel for the petitioner to give such undertaking to produce the same on next date of hearing clearly demonstrates that the case of the petitioner falls within the mischief of Order XVII Rule 3 the Code of Civil Procedure, 1908 as on i.e. 8th February 2012, record was not produced and adjournment was claimed at the instance of petitioner which was accordingly allowed for 10th of February 2012. It is to be noted that provisions of Order XVII Rule 3 are not only attracted in case of default on the part of party to produce the evidence but also to the situation where party due to his act or omission makes it impossible for the Court to proceed with the suit keeping in view the use of expression "or to perform any other act necessary to the further progress of the suit". There can be no cavil that despite availing opportunities and categorical denial on the part of learned counsel for the petitioner to give any undertaking to produce the record on next date, the petitioner made it impossible for learned trial Court to make further progress of the suit and as such order dated 10th of February 2012 is hardly subject to any exception. No jurisdictional defect can be pointed out in said order, which accordingly is maintained.

4. Admitted, after closure of statement of Ali Mahzar Nawaz (DW.1) on 10th of February 2012, no adjournment was sought at the instance of petitioner and the learned trial Court at its own granted adjournment to the petitioner for production of oral as well as documentary evidence, if any. In the attending circumstances one cannot find itself in dis-agreement with the contention of learned counsel for the petitioner that penal provision applied to could not have been made applicable while closing the remaining evidence.

5. On query, learned counsel for the petitioner maintained that the petitioner will produce one witness being attorney/authorized representative of the petitioner and as such while setting aside the order dated 14-2-2012 and allowing revision petition partly, the petitioner is permitted to produce its attorney/authorized representative to appear before learned trial Court on the date to be fixed by learned trial Court.

6. It has been informed that Ch. Ghulam Murtaza Upal the then learned Civil Judge, Lahore before whom suit was pending stands transferred and as such the parties are directed to appear before the learned District Judge on 17-12-2012, who shall entrust the case to any Court of competent jurisdiction, who shall provide one opportunity to the petitioner for appearance of its attorney/authorized agent besides production of documentary evidence in accordance with law. Failure to produce evidence on the date fixed by the learned trial Court may entail penal consequences.

7. There shall be no order as to costs. KMZ/D-13/L Order accordingly.