2009 PLP 188 (CLC)

SAIF-UR-REHMAN, J.

This revision petition has been directed against the order dated 19-4-2007 passed by the learned Additional District Judge, Multan whereby judgment and decree dated 22-6-2000 passed by the learned Civil Judge, Multan dismissing the suit filed by respondents was set aside and the suit was remanded to the learned trial court for its decision in accordance with law.

2. Suit for specific performance of agreement filed by the respondents was resisted by the petitioner. Issues were framed by the learned trial Court and the suit was adjourned to numerous dates. The respondents failed to produce evidence due to which their evidence was closed and the suit was dismissed by the learned Civil Judge, Multan.

3. Appeal was filed against the judgment and decree of the learned Civil Judge which was accepted by the learned Additional District Judge; Multan vide his judgment impugned through this revision.

4. Preliminary arguments heard.

5. Learned counsel for the petitioner submitted that after framing of issues 25 opportunities were allowed to respondents for producing evidence, however; they did not care to perform their obligation. In view of the contumacious conduct of the respondents; the learned Civil Judge rightly closed their evidence. The learned appellate Court, however, failed to appreciate the facts and relevant law and set aside the judgment passed by the learned trial Court contrary to the established principles of law. Reliance was placed on the authorities reported in Syed Iftikhar Hussain Zaidi v. Mst. Shafiqa Begum and 30 others 2003 SCMR 844, Mian Gul Shahzad Aman Room and others v. Kameen Mian and others PLD 2003 Pesh. 60, Aftab Ahmad Khan and others v. Mst. Surayah Begum and 7 others PLD 2004 Pesh. 168, Fateh Sher v. Muhammad Zubair 2007 SCMR 797 and Abdul Shakoor and others v. Province of the Punjab and 4 others 2005 SCMR 1673.

6. I have carefully gone through the above mentioned case law and the facts on record. A look through the order sheet appended by the petitioner with this petition shows that the evidence was brought by respondents on 16-2-1999 and 29-6-1999. However, their evidence was not recorded on the aforesaid two dates because of the inability of learned counsel for the petitioner to cross-examine them. No cogent reason has been given in the revision petition as to why the witnesses produced by the respondents were not cross-examined by the petitioner. Had learned counsel for the petitioner been aware of his responsibility and the said witnesses would have been cross-examined, the occasion for closing the evidence of respondents would not have arisen.

7. In view of the above facts I find that it was incumbent upon the petition to justify her inability to cross-examine the witnesses produced by the respondents on the said two dates and only then could the petitioner plead that the subsequent default of the respondents was not condonable.

8. In all the cases relied upon by the petitioner; the defaulting party had failed to produce evidence at all whereas in the present case it is proved that the evidence was brought by respondents at least, on two dates. This petition, therefore, is held to be without any force, hence, is dismissed in limine. H.B.T./A-114/L Petition dismissed.