2022 PLP 719 (MLD)

MALIK INAYAT-UR-REHMAN, J

The instant Civil. Miscellaneous bearing No.339/2021 has been filed by the present applicant/appellant against the impugned judgment / decree dated 11-11-2020 passed by the learned Senior Civil Judge Gilgit in Civil Suit No.75/2018 and Civil Case No.130/2013, whereby the learned trial Court has dismissed both the aforementioned civil suit and civil case of the applicant/plaintiff.

2. Briefly stated facts giving rise to the filing of the instant civil first appeal are that the present applicant/appellant had filed a suit for declaration and specific performance along with an application under Order XXXIX, Rules 1 and 2, C.P.C. for grant of temporary injunction before the learned trial Court. The learned trial Court had fixed the case for the evidence of PWs. On 08-10-2020 only one PW was present but could not be examined due to the absence of the defendants as well as their counsel. The case was again fixed for PWs. The learned trial Court struck off the right of adducing evidence of the appellant/plaintiff and dismissed the suit as well as Civil Case of the plaintiff vide judgment/decree dated 11-11-2020.

3. Feeling aggrieved from the above mentioned judgment/decree of the learned Senior Civil Judge Gilgit, the present applicant/appellant filed Civil First Appeal before the learned District Court Gilgit. The learned District Judge Gilgit vide judgment/order dated 29-04-2021, returned the appeal to the present applicant/ appellant with the direction to present the same before the court of competent jurisdiction, hence this petition in this Court.

4. The learned counsel for the appellant/plaintiff submitted that the learned trial Court has debarred the appellant/plaintiff under Order XVII, Rule 3, C.P.C. and his suit is also dismissed which has occasioned in miscarriage of justice. Precious rights of the appellant/plaintiff are involved in the case which warranted disposed of the case after affording opportunity to the appellant/plaintiff to lead their evidence but the learned trial Court has failed to appreciate this legal right of the appellant/plaintiff. Further the appellant/plaintiff has produced his evidence/PWs before the learned trial Court on 08-10-2020, which were not examined due to the absence of defendants as well as their counsel and on next date of hearing the PW did not attend the Court due to death of his relatives as such the impugned order is contrary to law and facts on record of the case and is based on misconception of law and is bad, absurd and perverse therefore, impugned order dated 11-11-2020 may be set aside and chance may be provide to the appellant/plaintiff to produce evidence before the learned trial Court.

5. The learned defence counsel opposed the arguments advanced by the counsel for the appellant/plaintiff and submitted that the case of the appellant/plaintiff was pending for evidence for the last 5 years as reflected from the impugned order and the appellant/plaintiff has failed to produce witnesses despite repeated notices to him under Order XVII, Rule 3, C.P.C., and last chances therefore the learned trial Court has rightly invoked powers available under Order XVII and Rule 3, C.P.C., and impugned order is passed well within the four corners of law and therefore does not warrant interference of this Court as such the instant appeal may be dismissed in limine.

6. We have considered the arguments of the parties and also gone through the record made available on file. The appellant/plaintiff was granted adjournments to provide his PWs positively since 09-07-2020 and the appellant/plaintiff could not produce his evidence till 24-09-2020 when notice under Order XVII, Rule 3, C.P.C., was given to the appellant/plaintiff and on the next date the appellant/plaintiff produced only one PW but he was not examined due to absence of defendant's counsel and adjournment was allowed. The appellant/plaintiff failed to produce his evidence on 16-10-2020 and on 28-10-2020 when fresh notice under Order XVII, Rule 3 with last chance was allowed to the appellant/plaintiff and the case was adjourned to 11-11-2020 and on 11-11-2020 the appellant/plaintiff again failed to produce his evidence and he was non suited by the learned trial Court vide impugned order dated 11-11-2020. Any application of the appellant/plaintiff to the learned trial Court on 11-11-2020 disclosing sufficient reason and cause of his inability to produce evidence is not available on file and is also not reflected in the impugned order. Otherwise the present case has remained pending for appellant's/ plaintiff's evidence in the trial Court for 5 years, which shows the delaying, non-seriousness and causal conduct of the appellant/plaintiff, therefore the appellant/plaintiff has failed to establish grounds of his appeal as such the appeal lacks merit and is hereby dismissed in limine. Civil Miscellaneous No.340 of 2020 filed by the appellant is also disposed of along with main appeal. File be consigned to record after due completion. SA/19/GB Appeal dismissed.