MUHAMMAD JEHANGIR ARSHAD, J.--- This constitutional petition calls in question the legality and validity of order dated 4-1-2005 passed by learned Judge, Family Court/respondent No.2, whereby the evidence of the petitioner/defendant in a family suit titled Mst. Kausar v. Habib Ullah was closed.
2. Without going into details of the matter, suffice it to say that prior to 4-1-2005 the suit was fixed on 23-12-2004 for recording of petitioner/defendant's evidence but on 23-12-2004 the learned Presiding Officer was on leave, hence the case was adjourned by Muhammad Hanif, the Reader of the Court for 4-1-2005 for recording of petitioner/defendant's evidence and on 4-1-2005 since the evidence of the petitioner/defendant was not available therefore, the learned Judge, Family Court closed his evidence after refusing to grant him any further opportunity for producing evidence.
3. Today, both the learned counsel for the parties are present and have been heard. The precise question requiring determination is as to whether the learned trial Court was justified in closing petitioner's evidence on 4-1-2005, especially when the last adjournment on 23-12-2004 was firstly not at the instance of the petitioner but due to absence of the learned Presiding Officer and secondly on 23-12-2004 case was adjourned for evidence of the petitioner to 4-1-2004 by the Reader of the Court, who prima facie did not have powers to fix a date for recording of evidence.
When confronted with the above situation, learned counsel for respondent No.1 had no answer to put forward except that previous to 23-12-2004 more than dozen opportunities were granted to the petitioner but he failed to produce the evidence, hence his previous conduct should be taken into consideration, as such learned counsel concludes that petitioner/defendant's evidence was rightly closed vide impugned order, dated 4-1-2005.
4. I have considered the arguments of learned counsel for the parties and also perused the relevant record.
5. I am afraid the contention of learned counsel for the respondent has got any force. Admittedly, on 23-12-2004 the learned Presiding Officer was on leave, hence, adjournment was granted by the Reader of the Court for 4-1-2005 which was not at the instance of the petitioner. Therefore, on 4-1- 2005 it would have been more appropriate for the learned trial Court to have given one more opportunity to the petitioner for the production of his evidence, may be for one or two days. Further I am also not ready to accept the authority of the Reader to fix a date for recording of evidence in the absence of Presiding Officer, unless so authorized by any specific order of the Honourable Chief Justice. In the absence of any expressed authority it would be disastrous to allow Reader to fix dates of hearing. Had the date for evidence been fixed by the Duty Judge the same would have made some sense, though in several cases even the power of Duty Judge to fix dates of hearing, has not been approved by the superior Courts; what to talk of recognizing power of the Reader to fix dates for hearing. As a matter of precaution and without going into bona fide of the petitioner, I am not inclined to maintain the order, dated 4-1-2005, as said date for recording of evidence was fixed by the Reader of the Court who was neither competent to fix date of hearing nor should have exercised such power. Even the learned trial Court/Judge, Family Court should have taken judicial notice of this fact while passing the order, dated 4-1-2005 and should have adjourned the hearing expressly posting out such jurisdictional defect and also by passing warning to the Reader from passing such-like orders in future.
6. The upshot of above discussion is that notwithstanding the ulterior motive of the petitioner for not producing evidence on 4-1-2005 and without considering the legal effect of adjournment on 23-12-2004 due to the leave of learned Presiding Officer, I set aside the order, dated 4-1-2005 for the simple reason that said date had been fixed by the Reader without any authority and in order to discard such a tendency in the ministerial staff of the Judicial Officers. It is further directed that the learned Judge, Family Court/respondent No.2 seized of the trial of the case should always be conscious of such illegality frequently committed by the ministerial staff and should take a serious view of the matter in case if such a course is adopted by the ministerial staff in future. Resultantly this writ petition is allowed, proceedings conducted by the Reader of the Court on 23-12-2004 are declared as without lawful authority and of no legal effect and in consequence thereof the order, dated 4-1-2005 passed by learned Judge, Family Court closing evidence of the petitioner/defendant is also annulled/set aside. The learned trial Court is directed to allow one or two opportunities to the petitioner to produce evidence and finally decide the case till 30-6-2005 without fail, by not granting unnecessary adjournments to the petitioner.
7. The parties present in Court are directed to appear before the learned Judge, Family Court/Trial Court on 2-6-2005. This writ petition is disposed of accordingly.