1996 SCMR 351 (PLP)

MUHAMMAD ILYAS, J: ‑‑Fads giving rise to this petition are that the respondent, Mst. Tanveer Mirza filed a suit against the petitioners, Barrister. Ch. Muhammad Abdus Saleem and four others, and respondent No. 2, Mst. Ghazala Suleman, for specific performance of an agreement to sell a piece of land which was alleged to have been entered into by Mst. Mumtaz Begum with her (M,St. Tanveer Begum). Thereafter, respondent No. 2, Mst. Ghazala Suleman started laying claim on the said land on the basis of sale -deed executed by Ms! lRumtaz Begum in her favour. Mst. Tanveer Mirza, hereinafter referred to as the respondent, therefore, filed the said suit for specific performance of the agreement. Mst. Mumtaz Begum has since expired and is being represented by the petitioners, Barrister Ch. Muhammad Abdus Saleem and others.

2. The suit was resisted, inter alia, on the ground that it was time barred. In reply, it was submitted by the respondent that the period for performance of the agreement, was extended, by Mst. Mumtaz Begum, from time to time and, therefore, the suit was not barred by time. In view of the pleadings of the parties, as many as twelve issues were framed. One of those issues was with regard to the question of limitation and its burden of proof was placed on the defendants‑petitioners by couching the issue in the following words:‑ "Whether the suit is barred by time ? "OPD"

3. The respondent produced witnesses in support of her case, including Muhammad Aslam Khan (P.W. 1). While closing her affirmative evidence, her counsel reserved right to produce evidence in rebuttal. Thereafter, the petitioners (defendants) adduced evidence and on conclusion thereof, the respondent examined Muhammad Aslam Khan (P.W.1) again, in rebuttal.

4. Re‑examination of Muhammad Aslam Khan (P.W: 1) was not to the liking of the petitioners and, therefore, they moved an application, under section 151 of the Code of Civil Procedure, for deleting the statement made by the said witness for the second time. The above application of the petitioners was rejected by the Civil Judge, who was seized of the suit. Petitioners, therefore, went in revision before an Additional District Judge but in vain. Then they filed a writ petition before the Lahore High Court which was dismissed by a Single Judge thereof. Hence this petition for. leave to appeal against the order of the learned Judge in Chambers.

5. The petitioners' case was argued by the petitioner Na. 1, Barrister Ch. Muhammzd Abdus Saleem, himself. It was contended by him that Muhammad Aslam Khan could not be re‑examined in rebuttal because he had earlier appeared as a witness of the respondent in affirmation of her averments. In this connection, we have already indicated that one of the issues framed in the suit was with regard to limitation and its onus of proof was placed on tine petitioners. It was, therefore, for the petitioners to lead evidence in affirmation of their plea of limitation. After they had done so, it was the right of the respondent to produce evidence in rebuttal of their evidence. It is not disputed that after leading her affirmative evidence, the respondent had reserved right to produce evidence in rebuttal of the petitioners' evidence. Thus, after the A petitioners had produced evidence to prove the said issue, the respondent had a right to adduce evidence in rebuttal of their evidence. Accordingly, Muhammad Aslam could be examined by her again to rebut the affirmative evidence of the plaintiff on the said issue even though he had earlier appeared to depose in affirmation of the averments made by the respondent.

6. The petitioners did not take timely steps to avoid the burden of proving that the suit was time barred. They should have been watchful at the stage of the drawing up of the issues. They ought to have endeavoured to get the issue of limitation framed in such a way as to make the respondent responsible for demonstrating that her suit was in time. It was submitted by Barrister Ch. Muhammad Abdus Saleem (petitioner No. 1) that he was not present at the time of framing of issues and, therefore, he could not object to the phraseology of the issue of limitation and the placing of its burden of proof on the petitioners. If it was so, the petitioner could subsequently make an application for re‑casting of the said issue; but it seems that this too was not done. When questioned by us, it was stated by Barrister Ch. Muhammad Abdus Saleem that even the second statement of Muhammad Aslam Khan, to which exception has been taken, was recorded by the learned Civil Judge without any protest from their side. In other words, his statement under challenge was not recorded subject to the objection of the petitioners. All this would show that the petitioners are themselves to blame for all what has been done in regard to the examination and re‑examination of Muhammad Aslam Khan (P.W. 1). It is, therefore, no longer open to them to make grouse against his depositions on two occasions.

7. We may also point out that the procedure adopted by the learned Civil Judge was in consonance with the provisions of rule 3 of Order XVIII of the Code of Civil Procedure, which makes the following reading: 3. "Evidence where several issues.‑‑Where there are several issues, the burden of proving some of which lies on the other party the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and in the latter case, the party beginning may produce on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case."

8. As stated by the learned Additional District Judge in his order referred to above, there were as many as twelve issues in the suit. Onus to prove the first ten issues was placed on the petitioners while the last two issues were required to be proved by the respondent. Thus, the respondent had a right to produce her evidence in the manner stated above. To be more precise, to begin with, she could examine Muhammad Aslam Khan (P.W. 1) in support of her claim and then again in rebuttal of the evidence produced by the (3 petitioners on the issues of which the burden of proof had been placed on them. Thus, re‑examination of Muhammad Aslam Khan, which has been objected to by the petitioners, does not offend against the relevant provisions of law.

9. What emerges from ‑the above discussion is that the case in hand does not merit interference by this Court. Leave to appeal against the impugned order of the learned Single Judge of the High Court is, accordingly, refused and the petition made in this behalf is dismissed. AA./M‑3170/S Leave refused.