2014 PLP 637 (SCMR)

MIAN SAQIB NISAR, J.

The petitioner-plaintiff instituted a suit for declaration etc. against the private respondents-defendants, in which the latter joined issues and thus the trial commenced; plaintiff adduced and completed his evidence, while the evidence of the respondents-defendants was closed in terms of Order XVII, Rule 3, C.P.C. as they having availed quite considerable opportunities failed to do the needful. It may be pertinent to mention here that before the closure of their evidence, respondents had also moved an application under Order XXVI, Rule 5, C.P.C. seeking indulgence of the court to examine two of their witnesses on commission, who according to them were residing in Iran and were unable to come to Pakistan. This application was turned down by the trial Court vide order dated 9-5-2011, and the order was not further challenged by them through any revision, rather the respondents filed a review of the above order which again was dismissed on 20-6-2011 and this review order too was not assailed in the revisional jurisdiction. Be that as it may, ultimately the suit of the petitioner was decreed on 23-11-2011; the respondents challenged this judgment and decree in appeal, but without any success, whereafter they invoked the revisional jurisdiction of the learned High Court which has been accepted to the extent that they have not been allowed to adduce any other evidence, except to have his/their own statements recorded. In this regard the learned High Court has relied upon Ghulam Rasool v. Rai Ghulam Mustafa and others (1993 SCMR 2026) and Muhammad Aslam v. Nazir Ahmed (2008 SCMR 942).

2. Learned counsel for the petitioner has argued that as per the facts and circumstances of the instant matter, the afore-stated dicta are not applicable. In the first case (supra), the party whose evidence was closed by the trial court under Order XVII, Rule 3, C.P.C. had moved to the court to give up his other evidence and pressed only to file his affidavit, but that request was declined, therefore, this court came to the conclusion that at least to the extent of allowing him to appear as a witness should have been permitted by the court. As far as the second case is concerned, the delinquent litigant was personally present and thus it was held that he should have been given an opportunity by the court for having his statement recorded. It is submitted that in the instant matter, the respondent(s) was not present before the court on 26-11-2006 when his/their evidence was closed and even Muhammad Aslam's case (supra) is not attracted therefore, to show indulgence to him (them), who admittedly is a delinquent litigant, would tantamount to allowing someone to misuse and abuse the process of law and justice.

3. Heard. Though the case(s) should not be lightly remanded by the appellate/the revisional courts, especially where there is sufficient evidence on the record enabling such courts to decide the case itself, and there exist no compelling sufficient reasons to do so; but the proposition in hand is whether the trial court had illegally and invalidly resorted to the provisions of Order XVII, Rule 3, C.P.C. and had wrongly closed the evidence of the respondents, which order was unlawfully endorsed by the appellate court, but that the learned High Court has validly for justified reasons has partly interfered with such order (when judgments/decrees were challenged before it) and correctly applied the law laid down in the two judgments of this court (supra). To our mind the revisional court in this context, seemingly was impressed by the fact that as the respondents-defendants were not marked absent in the order sheet of the trial Court on 26-11-2006 (when Order XVII, Rule 3, C.P.C. was applied) therefore this omission should not be construed as their absence, rather provided a margin to them assuming their presence, thus the court enabled them an opportunity of appearance/examination as their own witness (or through attorney), by relying upon the law laid down in Muhammad Aslam (supra). In our comprehension this could possibly be a valid approach of the court in the facts of this case, therefore, in the instant jurisdiction we are not inclined to interfere in the matter, because such probability of the respondents presence and they offering themselves to be examined as witnesses cannot be ruled out from the material available on the record, and the view thus formed by the revisional court cannot be held to be absolutely illegal and unfounded.

4. Notwithstanding our refraining to interfere in the matter on account of the above, we are of the candid view that provisions of Order XVII, Rule 3, C.P.C. are penal in nature and as per the settled law such provisions should be strictly construed and applied, therefore once the case of a delinquent litigant squarely falls within the purview and mischief of the law (ibid) then neither any concession should be shown to such litigant nor a lenient view favouring him should be resorted to; this should not even be permissibly done on the touchstone of exercise of discretionary power of the court and/or on the approach that technicalities of procedure should not be allowed to impede the interest of justice, and/or that the litigants should not be knocked out on technical grounds, and that adversarial lis should be settled on merits. If such approach is liberally followed and resorted to there shall be no discipline in the adjudication of the civil litigation and the delinquent whose case though is squarely hit and covered by the penal provisions of Order XVII, Rule 3, C.P.C. would be given a chance to his advantage and to the disadvantage of his opposing side. This is not the spirit of the law at all. It may not be out of place to mention here that to apply and to adhere to law is not a mere technicality, rather it is duty cast upon the court as per Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 to do so. Thus where Order XVII, Rule 3, C.P.C. is duly attracted, the court has no option except to take action in accord therewith.

5. In the above context, it may be held that in every case where the action against a delinquent party is imperative and his evidence has to be closed because the case squarely and eminently falls within the mischief of Order XVII, Rule 3, C.P.C., the court while closing the evidence is not in any manner obliged to adjourn the case and require or ask the litigant to appear and examine himself as a witness on a subsequent date. Obviously if the party is present in the court and desires to appear as a witness the court should not decline his request, rather it shall be appropriate that where the party is present, the court while applying Order XVII, Rule 3, C.P.C. and closing the evidence on a given date should itself ask the party to avail the chance of appearing as his own witness, and should also record such fact in its order (order sheet) that a chance was given to the litigant which has not been availed. However, if this fact is not so recorded by the court though the party was present and sought its examination such party should initially move an application to the court for examination if the case has not yet been decided. But where the case is finally decided a ground should be specifically set in the memo of appeal/revision as the case may be about the presence of the party and asking for the examination, which should be supported by an affidavit of the counsel of the said party to the above effect.

6. Now coming to the other petition (C.P. No.22-Q of 2014) filed by respondents-defendants; the claim agitated therein is that the learned trial Court should have allowed the application under Order XXVI, Rule 5, C.P.C. and the two witnesses who were in Iran should have been examined through commission. We have considered this plea and find that the orders dated 9-5-2011 and 20-6-2011 were never challenged by the respondents through any revision petition. Even these orders have not been subsequently and precisely challenged in the grounds of appeal, appeal filed by the respondents and the attack in his behalf is also conspicuously missing in the memo of revision brought by the said respondents before the learned High Court, there are only general remarks in both the memos of appeal and revision that the orders refusing petitioners (C.P. No.22-Q of 2014) request is illegal, but there is no challenge to these orders in the prayer clause of the appeal or the revision petition before the High Court, therefore, we do not intend to allow the respondents to examine the two witnesses through commission particularly when the order dated 9-5-2011 as mentioned earlier was not appropriately challenged by the respondents and has attained finality.

7. In the light of the above, both these petitions having no merit are accordingly dismissed. Leave refused. Before parting, it may be observed that the learned High Court has directed that the suit of the petitioner-plaintiff be decided within a particular period of time and by virtue of the present litigation or for that matter the instant order, we are not interfering in the direction which should be accordingly obeyed by the trial Court. MWA/T-2/SC Petition dismissed.