2016 PLP 67 (CLCN)

MUHAMMAD TARIQ ABBASI, J.

Through this revision petition, the order dated 5.9.2011, passed by the learned Civil Judge, Rawalpindi has been called in question, whereby the right of the petitioner to lead documentary evidence has been closed.

2. The facts in short are that the petitioner filed a suit for recovery of Rs.76,69,666.90, against the respondents, wherein the written statements were filed, the issues were framed, the oral evidence of the petitioner was recorded and for documentary evidence, opportunities were granted, but the petitioner had failed to lead the said evidence, hence through the impugned order, right of the petitioner to produce such evidence was closed.

3. The learned counsel for the petitioner has argued that towards documentary evidence, the cheques which were part of the file of a criminal case, pending in the court of learned Special Judge, Central, Rawalpindi, were to be tendered and that to get copies of the said cheques, application was accordingly filed and that for delivery of the copies, the date was given as 7.9.2011, but the learned Civil Judge had failed to give two days time to the petitioner for producing the cheques in documentary evidence and had knocked out the petitioner from his valuable rights, hence the impugned order is not sustainable under the law.

4. The learned counsel for respondent No. 2 has not seriously objected the revision petition, whereas the learned counsel appearing on behalf of respondent No. 1 has stated that a serious high handedness and miscarriage of justice has also been done by the learned Trial Court with the respondent No. 1, through order dated 28.7.2011, whereby his right to cross-examine the PW-1 and PW-2 has been closed and that under the revisional jurisdiction, the above said order dated 28.7.2011 may also be cured.

5. Arguments of all the sides have been heard and record has been perused.

6. As per record, the petitioner in his above mentioned suit had led oral evidence and when the date for the documentary evidence of the petitioner was fixed as 5.9.2011, his right was closed, with the observations that despite final opportunity, he had failed to produce documentary evidence.

7. The record shows that the documents intended to be tendered were the cheques, which were part of the record of a criminal case, pending in the court of learned Special Judge Central, Rawalpindi. To get copies of the cheques, the petitioner had moved an application on 27.8.2011 and for supply of the copies, the date was given as 7.9.2011. When the above mentioned good and justified cause, for not producing the documentary evidence was with the petitioner and before the learned Trial Court, then two days wait should have been made, but it seems that the learned Trial Court was in a hurry to dispose of the suit, hence failed to give an opportunity to the petitioner for the above mentioned evidence. Hence the impugned order dated 5.9.2011 could not be termed to be justified.

8. Under section 115 of C.P.C., this Court under revisional jurisdiction is fully competent to examine record of any subordinate court and if any jurisdictional error, towards passing of any order is found, then to cure it. Reliance in this regard may be placed upon the judgments reported as Allah Ditta v. Lahore Development Authroity and 5 others (2012 CLC 271) and Malik Bahadur Sher Khan v. Haji Shah Alam Khan and others (2012 MLD 1062).

9. It has been observed that the PW-1 and PW-2 were examined and when for their cross-examination, on behalf of respondent No. 1, the date was fixed as 28.7.2011, an application for adjournment was made, with the contention that the learned counsel for respondent No. 1 due to back ache was unable to attend the court, but despite the said fact, the learned Trial Court had preferred to close the right of the respondent No. 1 to cross-examine the above said witnesses. In this way, again a try to knock out the respondent No. 1 purely on technical ground had been made by the learned Trial Court, which was not mandate of the law and procedure.

10. Law always favours decision on merits and condemns the technicalities. Reliance in this respect is placed upon Haji Lal Shah v. Mst. Nooran through LRs and others (2012 CLC 1503), Muhammad Nazir v. Haji Zaka Ullah Khan (2002 CLD 345), Hafiz Muhammad Saeed and 3 others v. Government of the Punjab, Home Department through Secretary, Lahore and 2 others (2009 YLR 2475) and Kathiawar Cooperative Housing Society Ltd. v. Macca Masjid Trust and others" (2009 SCMR 574). But in the situation in hand, as stated above, the learned Trial Court was bent upon to dispose of the suit purely on technical grounds, which could not be appreciated.

11. Resultantly, by accepting the instant revision petition, not only the order dated 5.9.2011 of the learned Trial Court, which has been impugned in the instant petition, is set aside, but also the above mentioned other order dated 28.7.2011, whereby the right of cross-examination of the respondent No. 1 has been closed, is also set aside. Consequently, it is directed that one opportunity to the petitioner to lead the documentary evidence as well as the respondent No. 1 to cross-examine the PW-1 and PW-2 be granted for a date to be fixed by the learned Trial Court. If on the fixed date, the petitioner fails to perform his above mentioned job, then no further opportunity shall be granted and in the said eventuality, the instant revision petition will be deemed to have been dismissed. If the respondent No. 1 fails to cross-examine the PWs 1 and 2 on the fixed date, then the above mentioned concession granted in his favour shall be considerd to have been withdrawn. MH/F-26/L Revision allowed.