1999 PLP 1969 (CLC)

This judgment will decide Writ Petition No. 1261 of 1995 which calls in question order, dated 6‑3‑1995 of the learned Civil Judge/Rent Controller, whereby evidence of the petitioner was closed.

2. Petitioner filed a suit for specific performance of an agreement of sale in regard to House No.B‑11‑3‑S‑32 in Dhoke Jumma, Jhelum. It was claimed that respondent No. l had agreed to sell the house in issue in favour of the petitioner, in consideration of Rs.2,00,000 received Rs.30,000 as advance and failed to execute the sale‑deed, in pursuance of obligations under the agreement. Respondent No. l also filed an ejectment application against the petitioner, seeking eviction of the petitioner, from the property in dispute, on the ground of default in payment of rent and personal use.

3. The two matters were consolidated on 27‑6‑1993, when consolidated issues were framed. After framing issues, the case was adjourned to 17‑7‑1993 for evidence of the petitioner. It appears that vide order, dated 6‑3‑1995, the evidence of the petitioner was closed and the case was adjourned for arguments. On the same date, petitioner filed an application for recording his statement, on the ground that at the time when the case was called, he was present in Court, his counsel had gone to attend another case and that while closing the evidence, petitioner's statement was not recorded, though in law, petitioner was entitled to record his statement. The application was rejected by the learned Civil Judge/Rent Controller on the ground that a civil revision had already been filed against order, dated 6‑3‑1995. ‑

4. Petitioner challenged the original order, dated 6‑3‑1995 in revision which was dismissed by the learned Additional District Judge with the observations that no revision was competent against order of the Rent Controller. Resultantly, ,the initial order of the learned Civil Judge/Rent Controller closing evidence of the petitioner has been challenged in this petition.

5. Learned counsel for the petitioner submitted that the petitioner, being present in Court, there was no reason for not recording his statement, even if his other evidence was to be closed. It was added that the petitioner had summoned the witnesses and report was that witness was indisposed, therefore, penal provisions under Order 17, Rule 3 .of C.P.C. could not be applied as the petitioner was not at fault.

6. No one has entered appearance on behalf of respondent, despite notice.

7. Perusal of record reveals that on 6‑3‑1995, the learned Rent Controller closed evidence of the petitioner with the observations that the witness did not appear on account of indisposition and that the Court was not willing to wait for him. The record also indicates that on the same date, application for recording statement of the petitioner was moved which too was dismissed at a later stage. The question for consideration is as to whether in the given circumstances, the penal provisions for closing evidence were attracted. Since the petitioner had summoned the witness taken steps for progress of the case and the witness did not appear as he was indisposed, therefore, it was not a case in which any ,A negligence could be attributed to the petitioner or he could be considered to be at fault. The petitioner having taken steps for production of evidence, could not be non‑suited simply because the witness could not appear due to act of God. The Rent Controller should have adjourned the case instead of proceedings in haste. It is also observed that since 1995, this writ petition is pending. In this way, a period of four years has been lost, though the main case could have been decided by now, if one opportunity had been allowed to the petitioner. It is for this B reason that the superior Courts repeatedly observed that the Courts below should exercise their jurisdiction with care and caution and instead of proceeding in hate or passing any order mechanically, resulting in unnecessary litigation, the effort should be to decide the cases on merit.

8. There is another aspect of the matter. Petitioner, being present in Court, his statement should have been recorded. Although, the impugned order does not indicate that the petitioner was present yet it also does not give an impression that the petitioner was absent. Instead, filing of the application by the petitioner on the same day for recording his statement is indicative of the fact that the petitioner was present in Court and this being so, there was hardly any justification for not recording his statement. The learned Courts below, thus. proceeded with material illegality and committed jurisdictional error in closing the evidence and refusing to try the case on merit. The order suffering from ~C material illegality cannot sustain.

9. Resultantly, this writ petition is accepted, the impugned order is set aside, and petitioner is allowed one opportunity to produce evidence. The petitioner shall produce the wilness at his own responsibility and also record his statement for which one opportunity will be allowed by the Rent Controller. After completing evidence. the case will be; decided on its own merit.

10. Since it is an old matter, it is directed that the learned Rent Controller shall decide the two matters, within three months, positively, with intimation to the Additional Registrar of this Court. Parties shall appear before the learned trial Court on 22‑3‑1999. C.M.S./A‑77/L Order accordingly.