1988 PLP 1853 (CLC)

(c) Civil Procedure Code (V of 1908)‑‑ ‑‑Ss. 35‑A R 115‑‑Special costs‑‑Awarding of, in revision‑‑Petitioner obtaining unnecessary adjournments from Court below, played with procedural law as he succeeded for two decades in delaying decision of suit‑‑Petitioner not only used delaying tactics before Court below, but also challenged decree against him first before Appellate Court below and then before High Court seeking unnecessary adjournments‑ Petitioner, by abusing process of law having been avoiding his liability for all those long years‑‑High Court dismissing his revision petition found it a fit case for awarding special costs to respondent/ decree‑holder. Talat Farooq Sheikh for Petitioner. Mian Abdur Rashid for Respondent. This case has a chequered history. The suit for the recovery of Rs.28,737.10 was filed by M/s. ESSO Standard Eastern Incorporation on 17‑2‑1964. An ex parte decree was passed in favour of the respondent‑plaintiff on 17‑11‑1964. On an application of the petitioner defendant the ex parte decree was set aside: Thereafter, the petitioner‑defendant filed written ` statement on 17‑11‑1968. The respondent‑plaintiff took two years to conclude his evidence. To be precise the evidence was concluded on 22‑12‑1970. Thereafter, the petitioner‑defendant produced his first witness on 1‑4‑1973 and then moved an application for impleading one Hakim Muhammad Latif as a defendant. This application was dismissed the same day and the order dismissing the application was challenged in revision which was disposed of on 9‑12‑1973. Again the petitioner‑defendant took various dates to produce his evidence and again an ex parte decree was passed on 18‑2‑1976. The petitioner‑defendant repeated the application for setting aside ex parte decree which was accepted on 7‑2‑1977. Again the petitioner‑defendant took time to produce his evidence. In the meanwhile Messrs ESSO Standard Eastern Incorporation was taken over and was amalgamated in Pakistan State Oil by Act of the Federal Government. The Pakistan State Oil was substituted as a plaintiff vide order dated 3‑9‑1977 and the suit was then fixed for evidence of the petitioner‑defendant for 14‑1‑1978. Again the petitioner /defendant took three years to produce his witnesses and ultimately on 4‑7‑1981 the evidence was closed by the trial Court under Order 17, Rule 3, C . P. C . The petitioner‑defendant was allowed to make his statement for which he took further time which was again granted. Taking advantage of the time so obtained the petitioner‑defendant filed a review petition which was dismissed on 11‑4‑1983. The petitioner‑defendant then challenged these orders by filing a revision petition which was dismissed in limine on 29‑5‑1983. The petitioner/ defendant thereafter challenged the order closing his evidence, the order passed on review application and the order dismissing the revision petition by filing a constitution petition in this Court but the same was got dismissed as withdrawn on 1‑11‑1983. The trial Court then recorded the evidence of the petitioner‑defendant on 22‑5‑1984 and after hearing the parties decreed the suit on the same date. The appeal filed by the petitioner‑defendant was dismissed by the learned Additional District Judge Lahore vide judgment and decree dated 20‑5‑1985. Hence this revision petition.

2. Learned counsel in support of the revision petition argued that the trial Court has erred in law in closing the evidence as the petitioner‑defendant was not at fault for non‑appearance of the three witnesses who were employees of the Government as they were being summoned by him. According to him these were clerks of the Deputy Commissioner's Office, Railway Goods Office of the respondent/ defendant. It was added that even on merits the decree passed is illegal as the consideration of the pronote allegedly executed by the petitioner‑defendant was not proved. 3. 1 have gone through the record of the suit made available on the file of the revision petition. The plea that the evidence was illegally closed under Order 17, Rule 3, C.P.C. is not now available to the petitioner‑defendant for the reason that the said order was A challenged in revision which was dismissed though in limine but after considering the merits of the order passed. In revisional jurisdiction I cannot sit in judgment on an order passed in exercise of the same` jurisdiction by the learned Additional District Judge. Moreover, the said order was challenged in constitutional jurisdiction before this Court and the writ petition was got dismissed as withdrawn. This dismissal of the writ petition as withdrawn is again a bar to challenge the said order again before this Court in revisional jurisdiction. Learned counsel even otherwise could not show that the order was illegal as he has not placed on record the relevant material including the copy of the order sheet to show that the provisions of Order 17, Rule 3, C.P.C. could not be invoked. For all these reasons I find no merit in this plea and the same is, therefore, repelled.

4. On the question whether the pronote was executed with consideration an issue was framed and the onus of the issue was placed on the petitioner‑defendant. He has admittedly not produced any evidence to discharge the onus. The execution of the pronote has been proved by producing one of the marginal witnesses. The plea is also without merit.

5. Before parting with this judgment I cannot help observing that the learned Civil Judges before whom the suit remained pending from time to time failed to proceed with the suit in accordance with law and unnecessary adjournments were granted. The petitioner defendant was thus allowed to play with the procedural law with the result that the petitioner defendant succeeded for two decades in delaying the decision of the suit. The petitioner‑defendant thus by abusing the process of law has avoided his liability for all these years He then, challenged the .decree first before appellate Court and then before this Court and unnecessary adjournments were sought ever in this Court. This is, therefore, a fit case for awarding special costs to the respondent. The revision petition for the reasons given above is dismissed with special costs of Rs.3,

000. H . R T . / M‑6051 L Petition dismissed.