2005 PLP 1406 (YLR)

Mst. Ameer Khatoon had filed a suit in the Court of learned Judge Family Court, Rahim Yar Khan for recovery of dower against the legal representatives of Muhammad Asghar, to whom she was married and had become widow on the death of aforesaid Muhammad Asghar. Some of the defendants contested the suit by filing a written statement while the other had admitted the suit by filing a consenting written statement. Issues were framed by the learned Judge Family Court on 4-4-2002. The plaintiff was directed to produce her evidence but on the date, when the evidence was to be produced, she had filed an application for amendment of the plaint, which was accepted on 5-9-2002. Amended plaint was filed on 19-9-2002 and for the presentation of amended written statement 30-9-2002 was fixed. Contesting defendant's learned counsel relied upon the earlier written statement filed by the aforesaid defendants. However, he objected to the filing of fresh schedule of witnesses, which was as per learned counsel, introduced without permission from the Court. The objection was put on to the date when the evidence was to be produced by the plaintiff and the next date was fixed for 17-10-2002 for production of evidence of the plaintiff but as she had failed to produce evidence on that date, her right to produce the evidence was closed. Aggrieved from this order dated 17-10-2002, the plaintiff has filed the present writ petition.

2. The learned counsel appearing on behalf of the plaintiff/writ petitioner has vehemently asserted that the impugned order dated 17-10-2002 passed by the learned Judge Family Court is too harsh to be maintained in law, which needs to be set aside. On the first date of production of evidence, such an order, in fact to deprive the plaintiff/writ petitioner to prove her case.

3. Learned counsel for the respondents has supported the impugned order by stating that the writ petitioner was directed to produce her evidence but to prolong the case, she had moved an application for amendment of the plaint. So, according to the learned counsel, the plaintiff was avoiding to produce her evidence and she was not entitled to any indulgence of this Court. It has further been stated that the plaintiff had presented a schedule of witnesses without the permission of the Court and intended to produce witnesses from that schedule. So, the impugned order is not liable to be reversed.

4. I have considered the arguments of both the learned counsels and perused the record.

5. The fact cannot be denied that 17-10-2002 was the first date for production of evidence of the plaintiff in the case. The law provides that the cases should be heard and adjudicated upon on its merits and the parties should be granted reasonable opportunity to produce their evidence. On the first date, the closure of evidence was too severe to be upheld by this Court. It is to act as refusal by the Court to record the evidence. Therefore, I accept the writ petition and declare the order dated 17-10-2002 to be illegal and unlawful. Consequently, the learned Judge Family Court is directed to grant at least one opportunity to the plaintiff to produce her evidence. As regards the presentation of schedule of witnesses filed without permission from the Court, the order dated 30-9-2002 has taken itself, not of in which the learned Judge Family Court had postponed the decision of this objection at the time of production of evidence. Therefore, it needs no decision from this Court. So, the writ petition is accepted with direction as noted above. Petition accepted. H.B.T./A-418/L Petition accepted.