Salim Khan, J.--The grievance of Mst. Reshim Jan is that the learned Addl: District Judge, Haripur wrongly accepted the revision of the respondent against the judgment and order of the learned trial Court dated 19.10.2004 in 'pre-emption Suit No, 101/2003 and set aside the said judgment and order by his judgment and order dated 10.12.2005.
2. A suit was instituted by Mst. Reshim Jan against Mian Khan and Fardoon Bibi for possession of the property through pre-emption as mentioned in detail in the plaint. An application was submitted by the learned counsel for the plaintiff on 16.10.2004 for permission to record evidence of the plaintiff before the date fixed as he was an important witness and he was leaving for abroad.
Notice was given to the counsel for the respondent-defendant and his clerk appeared on 18.10.2004. The examination-in-chief of the witness was recorded and the date was fixed for 19.10.2004, on which date counsel for the defendant moved an application that the defendant be summoned as he would not cross-examine the witness without his presence. That application was turned down. The counsel for the defendant was directed to cross-examine the witness who declined. Hence the right of cross-examination of defendant to the extent of P.W. 2 was struck off.
3. This aggrieved the defendant who went to the Court of Addl: District Judge, Haripur in Civil Appeal No, 42/14 of 2004. The learned Addl: District Judge heard the arguments of both the sides and came to the conclusion that the order dated 19.9.2003 was not maintainable, that the issues were not framed as these were not available on the file, and directed the learned original Court to record evidence with opportunity of cross-examination in accordance with law. The plaintiff came with the present writ petition against the said order dated 10.12.2005.
4. The learned counsel for the petitioner contended that the appearance by counsel is appearance by a party, that it is the duty of the counsel to obtain full instructions from his client and that it is not the duty of the Court to procure the attendance of the client for the counsel. He further contended that when an opportunity is given to a counsel and that opportunity is not availed of, then his client is bound by his conduct and cannot claim a right to such an opportunity once again. He also contended that service of the counsel has always been considered as service of a party. He submitted that the court had served the counsel and the counsel had declined, therefore, the learned Addl. District Judge has wrongly decided that opportunity be given to the respondent for cross-examination of the witness whose statement was recorded on 18.10.2004.
5. We heard the arguments of the learned counsel for the petitioner and perused the available record.
6. It has clearly been brought on record by the learned Addl. District Judge that no order sheet regarding submission of the application on 16.10.2004 was written and that notice was given to the learned counsel for the defendant while making endorsement on the back of the application. It is always the right of a party to have a proper chance of hearing. The order sheet dated 13.10.2004 shows that Patwari halqa was not present despite the serving of summons and a warrant of arrest was issued against him for 3.11.2004. The petition writer was present on that date but he did not produce the relevant record because the plaintiff had not mentioned the record.
7. It was a special concession given to the plaintiff on his application dated 16.10.2004 that the statement of his witness was recorded on 18.10.2004. There is nothing on record to show that what were the extra ordinary special circumstances which compelled the plaintiff to submit such an application on 16.10.2004 although the parties were present on 13.10.2004' and no such application was submitted by the plaintiff, which if submitted on 13.10.2004, would have come to the knowledge of the defendant, three days before 16.10.2004. The unknown emergency took the learned Judge of the conclusion that the statement of the witness, without examining petition writer and patwari halqa, who were called for 6.11.2004, be recorded on 18.10.2004 or 19.10.2004. The Courts have powers for proceeding with the cases in accordance with law but the Courts are bound to not only do justice but to ensure that it is seen that justice is being done and has been done to the parties.
8. The plaintiff avoided submission of application on 13.10.2004, and the Court, without recording any order sheet, summarily conducted proceedings on the application without taking into consideration the convenience of the parties. The learned counsel for the defendant was taken by surprise on 18.10.2004 and 19.10.2004, when he was already confident that the next date for hearing was fixed as 6.11.2004 when the case was dealt with on 13.10.2004.
9. The learned Addl: District Judge has rightly decided the appeal in the ends of justice to be done equally to both the parties without prejudice to any of the parties, in order to facilitate the opposite party.
10. We find no merits in the, present writ petition which is hereby dismissed in limine.