1984 PLP 1395 (CLC)

‑‑ O. XVIII & S. 115 ‑ Provisional Constitution Order (1 of 1981), Art. 9‑Trial Court framing fresh issues and substantially amending previous issues but not calling plaintiffs on whom onus of issues lay to lead evidence‑Neither defendants called upon to lead evidence nor plaintiffs given opportunity to rebut evidence and evidence not closed by Court‑Direction of District Judge to trial Court to record fresh evidence of parties on issues, held, unexception able in circumstances. This is a petition under Article 9 of the Provisional Constitution Order, 1981, whereby Syed Muhammad Baqir and eight others, petitioners, want this Court to direct the trial Court to proceed in accordance with law and dispose of the case accordingly on the basis of the evidence of the parties, already on record.

2. The facts leading up to this petition in brief, are that Syed Abid Hussain Shah and his wife Mst. Taj Khatoon Bibi, the predecessor‑in -sinterest of the petitioners filed a suit for declaration against Abdul Shakoor and others. The suit was contested. On the pleadings the trial Court framed seven issues. T4he parties examined witnesses and closed their evidence. On 3‑3‑1979, Karim Nawaz Khan, respondent No. 24, moved application to be impleaded as a defendant, the application was allowed. He filed written statement and raised some preliminary objections whereon the trial Court re‑framed the issues on 17‑2‑1982 and directed the parties to file the list of the witnesses which they wanted to be summoned. The trial Court directed the defendants/ respondents to lead evidence on fresh issues first and the plaintiffs/petitioners to rebut the same. Respondents 3 and 24 produced evidence and closed the same on 27‑5‑1982. At this the co‑defendants sought permission to produce evidence to rebut the evidence of respondents Nos. 3 and 24 which was allowed by the trial Court. Feeling aggrieved the petitioners (plaintiffs filed revision which was accepted on 1‑12‑1982. The learned District Judge, while setting aside the order, dated 27‑5‑1982 made some directions for recording the evidence of the parties. In paragraph 4 of the judgment he said :‑

4. The learned counsel for the parties have been heard, the record and the impugned order seen. Perhaps the learned Civil Judge did not care to read and appreciate Order XVIII of the Code of Civil Procedure which provides for "Hearing of the suits and examination of witnesses". Since the fresh issues had been framed and the previous issues had been substantially amended, so the case in a way was re opened and thus under the said Order the plaintiffs should have been called upon to lead their evidence as the onus of the issues was upon them the allegation being there on behalf of defendant No. 24 that the other defendants were colluding with the plaintiffs, he should have been called upon to lead evidence ; then defendants Nos. 1, 2, 6 to 11 and 18 to 23 should have been called upon to lead their evidence and thereafter the plaintiffs should be given the opportunity to rebut the evidence. The procedure has been flagrantly disregarded by the learned Civil Judge and so the whole exercise seems to be in a wrong direction." He further directed the trial Court to correctly follow the procedure indicated above for recording the evidence of the parties. The petitioner feeling still not satisfied by the directions given by the Court for recording the evidence has challenged the same through this writ petition.

3. Learned counsel submits that since on the issues originally framed, the parties had closed the evidence, the learned District Judge was not justified ,to give direction for recording fresh evidence on the issues‑Inasmuch as‑the newly framed issues Nos. 3, 4, 6 and 8 are the issues of law and for rebuttal of the same no witness is required to be examined and as for issue, No. 9 although it is an issue of fact yet respon dents Nos. 3 and 24 having not led any evidence on this issue there was no justification to allow the co‑defendants or the plaintiffs/petitioners to lead evidence ah rebuttal.

4. After hearing the learned counsel and going through the record I find that on 17‑2‑1980 the trial Court re‑framed as many as 12 issues including six issues framed earlier ; that the trial Court allowed the parties to lead evidence in proof and rebuttal of the newly‑framed issues ; and the parties were asked to furnish the list of the witnesses to be summoned by the Court ; that the petitioners as well as the co‑defendants have no examined any witness after the refraining of the issues ; that they have not closed their evidence as yet and the trial Court has also not closed their evidence under Order XVII, rule 3, C. P. C. In these circumstances I am of the considered opinion that the learned District Judge while accepting the revision has given proper directions for recording of the evidence of the parties and it was necessary in the interest of justice and for the just decision of the case. For all these reasons I am of the opinion that the impugned order of the learned District Judge is well within authority. , The writ petition is, therefore, dismissed in limine. M. Y. H. Petition dismissed.