2006 PLP 1447 (MLD)

MUHAMMAD JEHANGIR ARSHAD, J.

Kashif Ali Khan who is the defendant before the learned trial Court in a suit for pre-emption against him by Sher Jan Muhammad and others respondents is aggrieved of the order, dated 4-7-2005 whereby the learned trial Court closed his right to cross-examination the respondents witnesses.

2. The facts in brief are that petitioner purchased land measuring 846 Kanals 12 Marlas through mutation No.277, dated 24-5-2003- for a sale price of Rs.1,21,61,

260. The said sale was sought to be pre-empted by Sher Jan Muhammad etc. respondents by way of suit filed on 15-9-2003. The petitioner in the suit filed written statement on 15-10-2003 and the learned trial Court on the basis of the pleadings of the parties framed issues on 23-6-2004 and directed the respondents to produce evidence on 29-7-2004. As the evidence of the respondents was not available on 29-7-2004 the case was, therefore, adjourned to 18-9-2004 and then to 14-10-2004 due to non-availability of evidence but no evidence was produced by the respondents on 14-10-2004 and the case was adjourned to 10-11-2004. From 10-11-2004 the same was adjourned to 25-11-2004 due to absence of respondents evidence and from 25-11-2004 to 18-12-2004 again for the non-appearance of respondents evidence. On 18-12-2004 as the learned Presiding Officer was on leave, hence the case was adjourned to 19-1-2005 for respondents' evidence. On 19-1-2005 again the learned Presiding Officer was on leave and the case was 'adjourned to 3-2-2005. On 3-2-2005 again the evidence of the respondents was not present and the case was adjourned to 26-2-2005 with warning of , last opportunity. Again on 26-2-2005 the respondents failed to produce evidence and the case was adjourned to 8-3-2005 with a rider of last and final opportunity. On 8-3-2005 although the evidence of the respondents was available yet the same could not be recorded due to ailment of the learned counsel for the petitioner and the case was adjourned to 30-3-2005, on which date, the case was adjourned to 16-4-2005 due to incomplete evidence of the respondent. On 16-4-2005 as the learned Presiding Officer was on leave, hence the case was adjourned to 7-5-2005. On 7-5-2005 only the examination-in-chief of P.W. was recorded and the case was adjourned to 30-5-2005 for cross-examining P.W. and recording the statement of the remaining witnesses but since the learned Presiding Officer was on leave on 30-5-2005 the case had to be adjourned to 8-6-2005, on which date, it was again adjourned to 21-6-2005 at the request of the learned counsel for the petitioner. On 21-6-2005 cross-examination of P.Ws 2,3 and 4 was recorded and the case was adjourned to 4-7-2005 which is now the crucial date. The learned trial Court passed the following order on 5-7-2005.

3. Since the learned trial Court through the abovementioned order closed the right of the petitioner to cross-examine the P.Ws., the petitioner has challenged the said order through this civil revision.

4. It has been argued by the learned counsel for the petitioner that although learned counsel for the petitioner was available on 4-7-2005 yet as the learned counsel refused to cross-examine the P.Ws. the only course open to the learned trial Court was to proceed under Order IX read with Order XV11, C.P.C. but under no authority of law learned trial Court could competently pass the impugned order depriving the petitioner from his valuable rights of cross-examine the P.Ws. specifically on the question of performance of requisite talabs under the Pre-emption Act. The learned counsel for the petitioner has in support of his contention though relied upon the case of "Nazir Ahmad v. Collector and others 1993 CLC 241 yet I am afraid that the same has any relevancy in the facts and circumstances of the case, hence it cannot be relied upon.

5. On the other hand, learned counsel for the respondent/plaintiff by placing reliance on the cases of "Mukhtar Ahmad v. Mushtaq Ahmad and 2 others" (2004 YLR 392(LHR), "Mad Ullah Khan v. Senior Civil Judge and another" (1990 CLC 803) (Karachi) and "Haji Muhammad Tayyab v. Muhammad Sharif Malik" (1996 SCMR 1967) contends that the learned trial Court was justified in passing the impugned order and no illegality or irregularity had been committed, hence this revision petition is liable to be dismissed.

6. I have considered the arguments of the learned counsel for the parties and has also gone through the record available on the file. 7.? So for as the contention of the learned counsel for the petitioner that as the counsel for the petitioner before the learned trial Court expressed his inability to cross-examine P.Ws. in the absence of the petitioner, hence learned trial Court instead of debarring the petitioners to cross-examine the P.Ws. should have proceeded under Order IX or XVII, C.P.0 is concerned the same is not sustainable for the simple reason that unless the Advocate either withdraws his power of attorney or his power of attorney is determined with the leave of Court in terms of Order XXX Rule 4(2), C.P.C., therefore, the inability to cross-examine P.Ws. shown by the learned counsel for the petitioner before the trial Court on the crucial date, viz 4-7-2005 was not only against the said provisions of law but also amounts to mis-conduct on the part of the said counsel. Reliance is placed on "Farman Ali v. Muhammad Yousaf Ali" (1990 CLC 1936) (LHR). In this view of the matter I am not inclined to agree with the contention of the learned counsel for the petitioners that the learned trial Court had no jurisdiction to pass such an order.

8. However, the question requiring determination is as to whether in view of the fact that respondents themselves were guilty of negligence in not producing the evidence on several earlier dates as narrated above and specially when the learned trial Court had been adjourned the case for recording evidence of the respondent in a mechanical manner without application of mind the learned trial Court was left with no option but to pass the impugned order. As mentioned above prior to 4-7-2005, the case was adjourned to several dates in a routine manner and without proper application of mind by the trial Court in terms of Order XVII Rule I or Rule 3, C.P.C., hence passing of impugned order was not legally justified on 7-4-2005 specially when there was neither any notice to the petitioner giving him last and final opportunity for the said purpose; nor the respondents were themselves serious for the production of their evidence. Therefore, while maintaining the order of the learned trial Court on legal plane I am not inclined to sustain the same in view of the abovementioned factual position and hold that the learned trial Court would have been a bit slow in passing the said order and for that matter the learned trial Court could adjourn the case on payment of some costs directing the learned counsel for the petitioner either to make the petitioner available on the next date of hearing or to come prepared to cross-examine the P.Ws. This would have not only saved the parties from further litigation but in the meanwhile even the main suit would have been decided so for.

9. Resultantly this civil revision is allowed by setting aside the order, dated 4-7-2005, the petitioner is allowed to cross-examine the P.Ws. subject to payment of costs of Rs.10,000.

10. The parties shall appear before the learned trial Court on 5-6-2005 and the learned trial Court shall allow only one opportunity to the petitioner to cross-examine the P.Ws. by fixing a date with a margin of three weeks and it would be the responsibility of respondent to produce P.Ws. for cross-examination on the date so fixed and in case of default having been committed by either party on the said date the learned trial Court shall be at liberty to proceed with the matter strictly in accordance with law. It is made clear that the payment of costs of Rs.10,000 shall be condition precedent for cross-examining the P.Ws. and in case if the petitioner fails to pay the cost he would not be entitled to cross-examine the P.Ws. and in such eventuality the order, dated 4-7-2005 shall remain in field. M.H./K-36/L?????????????????????????????????????? ??????????????????????????????????????????????? Revision allowed.