1995 PLP 1078 (MLD)

Bashir Hussain Khalid for Petitioner. Lal Khan Baloch for Respondents. Date of hearing: 5th October, 1994. This Constitutional petition is directed against the order. dated 13‑4‑1991 passed by the learned Civil Judge, Faisalabad, whereby the evidence of the petitioner was closed under Order 17, Rule 3, C.P.C. This order was affirmed by Ch. Ahsan Ahmad, learned Additional District Judge, Faisalabad, vide impugned order, dated 22‑4‑1991. The last order states that the learned trial Court had granted many opportunities to the petitioner for producing evidence, but he failed to produce the evidence on the adjourned dates.

2. In the revision petition before the learned Additional District Judge (Annexure "D") it was stated that the petitioner alongwith his two witnesses appeared before the Court on 13‑4‑1991 according to the previous Court timings, which used to start at 9 a.m. The petitioner reached the Court at 9 a.m. but was informed that his evidence was closed earlier as he was not present alongwith his evidence when the case was called. It is on record that immediately before 13‑4‑1991 the Court timing were from 9 a.m. to 4 p.m. However, in the month of Ramazan the Court timings were changed which started from 7‑30 a.m. instead of 9 a.m. The petitioner submits that he had no notice of the changed Court timings, therefore, he appeared in Court on 13‑4‑1991 at 9 a.m. according to the previous Court timings.

3. Although the conduct of the parties is relevant, yet this Court has to see whether on 13‑4‑1991 there was justifiable reason for the non‑appearance of the petitioner and his witnesses before 9 a.m. when the case was called by the learned trial Judge.

4. The superior Courts have always favoured the policy that parties should be given proper opportunity to prove their respective claims and the cases are decided on merits. The reasons advanced by the petitioner for the non‑appearance and non‑production of evidence on 13‑4‑1991 when the case was called are justifiable. He has stated in his revision petition before the learned Additional District Judge that he reached the Court. at 9 a.m. . alongwith his witnesses, but the order closing the evidence had already been passed and that he reached the Court somewhat late on account of change in the Court timings during the month of Ramazan. There is no finding of the learned Additional District Judge with regard to this assertion of the petitioner. It will prolong the litigation if I remand the case for decision of the learned Additional District Judge on this point. In my opinion, there is justifiable reason for interference in view of the fact that on 13‑4‑1991 the petitioner defaulted in appearing before the learned Court alongwith his witnesses at the time when the case was called because of the change in Court timings, otherwise he and his witnesses appeared according to the previous Court timings. There is no rebuttal on record showing that this assertion of the petitioner was incorrect. I, therefore, set aside both the impugned orders and direct that the learned trial Court shall give one more opportunity to the petitioner for producing his entire evidence on a date to be fixed by the learned Court of which due notice will be given to the parties concerned. This writ petition is accordingly accepted with no order as to costs. AA./S‑669/L Petition accepted.