' MAULVI ANWARUL HAQ, J.- For the purpose of this judgment reference to the pleaded facts would not be necessary. Suffice it to say that on 16-2-2002, the petitioner filed a suit for specific performance of an agreement to sell against respondent No.3. The suit was contested by filing written statement. Issues were framed on 29-5-2003. The case was adjourned to 9-6-2003 for recording evidence of petitioner. On the said date the petitioner was not present and the case was adjourned to 12-6-2003. On this date one witness P.W.l was examined and it was noted that the Court time was over and both the learned counsel asked for time. The case was adjourned to 19-6- 2003. On this date the case wa's transferred to another Court and was adjourned by the said Court to 2-7-2003. On this date it was recorded, that the evidence was present but the learned counsel for respondent No. 3 was not prepared to cross-examine the witnesses. On his request the case was adjourned to 8-7-2003, On this date the order narrates that examination-in-chief of three witnesses of petitioner has been recorded. However, for the reason not stated the case was directed to be called at 1-00 p.m. For cross-examination. At the said point of time cross- examination of a witness (P.W.2) was recorded and it was found that the other witnesses' had slipped away. Since cross-examination of P.W.2 had been recorded the learned trial Judge closed the right to produce other witnesses for the reason that the same stands disclosed. It was further mentioned that there was direction by the learned District Judge in the said case. Against this order a revision was filed, which has been dismissed by the learned A.D.J., Faisalabad on 1-9-2003.
2. The learned counsel for petitioner contends that in view of circumstance glaring on the face of record, the learned trial Court had acted without lawful authority while closing remaining evidence of the petitioner 'because no fault is attributable to him.
3. The learned counsel for respondents, on the other hand, supports the impugned order with the contention that a frivolous suit had been filed and being prolonged.
' I have examined the copies of record appended with this writ petition. I have already noted above detail of proceeding before the learned trial Court. I find that except for the first date i.e. 9-6-2003 no other ' adjournment is attributable at all to the petitioner. It is rather ironic that on 2-7-2003 i.e. Immediately preceding date the learned trial Court did not feel any qualm while sending away all the petitioner's witnesses, who were present as the learned counsel for respondent was not prepared to cross- examine them and sought adjournment. On the other hand on the next date he recorded examination-in-chief of three witnesses and no reason is forthcoming as to why the case was kept pending till 2-00 p.m. It can be safely assumed that this was done only to accommodate the learned counsel, who had to cross-examine the witnesses. It is in the order, that P.W.2 had been cross-examined at 2-00 p.m. Copy of statement of P.W.2 is ' Annexure "K" and lengthy cross- examination shows that it might have taken quite some time to record the same. An explanation was also furnished before the learned Court of revision that the witnesses kept on waiting in the Chamber of lawyer, but could not turn up when cross-examination of P.W.2 stood complete. To my mind the delay is wholly attributable 'to. The learned trial Judge, who should have recorded .The examination-in-chief of the witnesses turn by . Turn after cross-examination of each of the witnesses.
5. The learned counsel for respondents then contends that attorney of the petitioner himself was a witness and he should have, at least, waited outside the Court. He also complained that the proceedings have been prolonged because of the said fact. This complaint can be redressed with costs. The writ petition is allowed. Both the impugned orders are declared without lawful authority and are set aside. The learned counsel for parties are unable to state the next date fixed before the learned trial Court in the main case. Be that as it may the parties are directed to appear before the learned trial Court on 18-7-2007. The witnesses will be made available for cross- examination by the learned counsel for petitioner on the said date and their statements will be recorded. This will be subject to payment of costs of Rs.500 by the petitioner. No order as to costs in the writ petition. A copy of order of this Court be immediately remitted to the learned trial Court.
Petition allowed.
2007 YLR 2827 [Lahore] Before Sh. Azmat Saeed, J MUHAMMAD IJAZ GORAYA--- Appellant versus Mst. HAMEEDAN BIBI and others-Respondents Regular Second Appeal No.206 of 2004 and C.M. No.1260-C of 2006, decided on 15th March, 2007.
Civil Procedure Code (V of 1908)- ----0. XVII, R.3 & S.149---Dismissal of suit for non production of evidence---First for deficiency in courtfee---Validity---Record revealed that in spite of several adjournments granted to appellant on his request, appellant failed to produce his evidence and thus, he abused the process of Court; it was only thereafter that plaintiffs' right to produce evidence was closed and suit was dismissed by Trial Court---Upon dismissal of suit plaintiff filed an appeal on which requisite court-fee was not affixed-- Although an opportunity in this behalf was granted by First Appellate Court but the deficiency in court fee was not made up---Impugned judgment and decree of Trial Court as well as First Appellate Court were therefore, in accordance with law and no illegality therein had been pointed out by counsel for appellant---Appeal was dismissed by High Court with cost. [p. 2828] A Ch. Anwar Khan for Appellant.
Arif Mahmood Chaudhry for Respondents.
C.M. No .1260-C of 2006 ' SH. AZMAT SAEED, J.-This is an application seeking restoration of the appeal which has been dismissed in default on 6-4-2006. The learned counsel for the respondents has no objection to the acceptance of this application and restoration of appeal provided the main appeal is heard today.. Learned counsel for the appellant accepts the offer of the learned counsel for the respondents. Consequently, C.M. No.1260/C of 2006 is accepted, the order, dated 6=4-2006 is recalled and the appeal is ,restored to its original number. Main Appeal
2. This appeal is directed against the appellate judgment and decree dated 8-9-2004 whereby the appeal filed by the present appellant against the judgment and decree dated 24-4-2004 was dismissed.
3. Brief facts necessary for the adjudication of .The lis at hand are that the appellant filed a suit for specific performance against the respondents. The said suit was dismissed under Order XVII, rule 3 of the C.P.C. As the appellant/ plaintiff had failed to produced evidence. Aggrieved by the aforesaid dismissal of the suit vide judgment and decree, dated 244-2004 the appellant filed an appeal.
During the course of hearing the appellant was directed to affix the requisite court-fee on the appeal which was not done. Consequently, the appeal was dismissed vide the 'impugned appellate judgment and decree, dated 8-9-2004.
4. The learned counsel for the parties have been heard and the record perused.
5. It is not disputed by the learned counsel for the appellant that in the first appeal court-fee of Rs.15,000 was required to be affixed. It is also not disputed by the learned counsel for the appellant that opportunity for making up the deficiency in the court-fee was granted to the appellant which was not availed of and the deficiency was not made up. In the above circumstances that appeal was dismissed. The said appellate judgment and decree is in accordance with law. No legal infirmity therein has been pointed out so as to persuade this Court to interfere therewith.
6. I have also examined the judgment and decree of the trial Court. It appears that after the filing of the written statement issues were framed on 24-2-2003 and the case was adjourned for evidence of the plaintiff for 22-3-2003. No evidence was produced on the said date and on the succeeding several dates by the appellant/ plaintiff despite the fact that adjournments had been granted at his request and subject to payment of costs. On 7-3-2003 the statement of the plaintiff was eventually recorded. However, he was not made available for cross-examination on the next several consecutive dates of hearing on the ground that the counsel was not available. Such adjournments were also granted at the request of the appellant/plaintiff including some subject to payment of costs. Eventually in the above circumstances the right to produce evidence of the plaintiff was closed under Order XVII, rule 3 of the C.P.C. And the suit was dismissed for lack of evidence by the trial Court. In all, it appears, that about 18/19 adjournments were granted to the appellant/plaintiff to produce evidence. However, such evidence was not produced and it is only thereafter that right to produce evidence was closed and suit dismissed. It is clear and obvious that not only the provisions of Order XVII, rule 3 of the C.P.C. Were clearly applicable to the case but also that the appellant/ plaintiff had been deliberately not producing his evidence and had repeatedly sought adjournments in this behalf which amounted to an abuse of the process of the Court. And upon dismissal of his suit he filed an appeal on which requisite court-fee was not affixed. An opportunity in this behalf was granted by the First Appellate Court, yet the deficiency in court-fee was not made up. The impugned judgment and decree of the trial Court as well as the First Appellate Court are in accordance with law. No illegality therein has been pointed out by the learned counsel for the appellant at the bar. This appeal is totally devoid of any merit and is dismissed with costs.