2008 PLP 677 (CLC)

The appellant has impugned the order, dated 8-10-2007 passed by Single Judge in Suit No.829 of 2004 whereby the suit filed by the appellant against the respondents was dismissed for non-prosecution. Succinctly the facts leading to the case are that the appellant filed Civil Suit No.829 of 2004 against the respondents for declaration, permanent injunction, possession and damages to the tune of Rs.10 million averred that the appellant is entrepreneur as well as philanthropists, respondent No.1 Housing Society allotted a plot to the appellant in the year 1995. Respondent No.2 is serving as Secretary of respondent No.3, respondent No.3 is responsible for overseeing the quality of building works. The respondent No.4 is the S.H.O. of the area who aided and abetted the respondent Nos.1 and 2 for dispossessing the appellant from the said suit property bearing No. Special-D-III, admeasuring 1966.32 square yards in between Row Nos.64, 64/1, 65, 67/1 and 68/1, in Block 6, P.E.C.H.S., vide allotment order, dated 31-8-1995 the appellant has raised boundary wall out of his own funds installed iron gate constructed guard room. In the meanwhile one Muhammad Bashir Qasim filed a suit against the appellant seeking permanent injunction which was contested and finally the appellant has succeeded. The suit was contested after the settlement of the issues, Commissioner was appointed for recording the evidence of the parties. The appellant did not appear before the Commissioner for the purpose of cross-examination on 11-11-2006. On 20th March, 2007 the appellant's application was granted by the learned Commissioner. On 4-6-2007 the matter was fixed for cross-examination of the appellant and his witnesses, they did not appear before the Commissioner in the late hours of the day the counsel for the appellant filed an application for adjournment that the appellant along with his witnesses was stuck up in the traffic jam at Hotel Metro Pole. The Commissioner rejected the application ultimately filed a statement before the Single Judge and the appellant's suit was dismissed for non-prosecution through the impugned order. Learned counsel for appellant submits that on 26-3-2007 on the request of the counsel appearing for the respondent cross-examination of the appellant Ghulam Nabi was reserved. Matter was fixed for the evidence of the appellant and his witness on account of unavoidable circumstances, due to traffic jam they could not approach the Commissioner's office, his counsel moved an application for adjournment which was declined in haste and arbitrary manner without taking into consideration the difficulties faced by the appellant. In support of his contention reliance is placed on Ajab Khan v. Karimi Industries and others PLD 1980 Pesh. 259 and Themas Dass v. State of Punjab PLD 1970 Quetta 79, Muhammad Ramzan v. Mst. Allah Wasai and 3 others 2006 MLD 1577 and Amanullah Khan and 5 others v. Mst. Hayat Bibi and 4 others 2006 CLC 1546. On the other hand learned counsel for respondent has contended that the appellant has no interest in the subject property upon the cancellation of the allotment allotted to him the respondent No.1 has established a hotel. It is submitted that the appellant was allowed adequate opportunity to produce his evidence, he had deliberately defaulted. We have considered the statements made by the learned counsel for the parties, perused the record of the case. On 11-11-2006 due to non-appearance of the appellant and his witnesses for cross-examination the appellant side was closed by the Commissioner and the matter was adjourned for defendant's evidence. The appellant moved application for recalling the order referred above before the Commissioner on 20th March, 2007, the application was granted with a caution that there shall be no adjournment' in the matter. That on 4th June, 2007 the appellant and his witnesses were stuck up in traffic and application moved by the counsel was rejected which was not found to be in conformity with the documentary evidence produced by the appellant in support of his case, ultimately, suit was dismissed upon the appraisal of the record it appears that the impugned order is not in conformity with law. Law favours adjudication on merits, though the appellant had produced a challan in the name of the bank accompanied with CMA No.609 of 2007 and had deposited the challan amount in the Awami Markaz returned back via Shahrah-e-Faisal Hotel Metro Pole traffic was blocked due to VIP movement therefore, he requested his counsel to make adjournment application but the learned Single Judge had disbelieved the explanation furnished by the appellant and came to the conclusion that the appellant and his witnesses despite opportunity was afforded to them for cross-examination remained absent and mere filing of the affidavit in evidence does not constitute evidence unless their deponent submit themselves for cross-examination. Since valuable rights of the parties are involved therefore, in all fairness matter should be decided on the basis of evidence produced by the parties before the Commissioner therefore, impugned order is hereby set aside. Appeal is allowed in terms of the prayer. Case is remanded back to the trial court with a direction to the Commissioner to record the evidence of the parties within four months. In case of appellant failure to adduce evidence, the law will take its own course. On account of inordinate delay in the conclusion of the trial appellant is directed to pay cost of Rs.10,000 to the respondents Nos.1 and

2. H.B.T./G-6/K Case remanded.