' SARDAR MUHAMMAD ASLAM, C.J.---Instant Civil Revision is directed against the order, dated 16-5- 2007 passed by learned Civil Judge, Islamabad, whereby he closed the right of evidence of the petitioner.
2. Petitioner-plaintiff filed a suit for specific performance of an oral agreement, with the respondent No,1, for purchase of membership bearing No,048 of Islamabad Stock Exchange, through Dr. Tariq Mahmood Sheikh, member of Islamabad Stock Exchange and Imran Qayyum. The bargain stuck for a consideration of Rs,80,00,000 (Eight million). The petitioner-plaintiff asked the respondent No,1 for transfer of membership but he refused to do so, on the pretext of price escalation of ISE membership. Matter was re-negotiated and eventually consideration of membership was re-fixed at Rs,8.5 million. Petitioner- plaintiff issued a cheque bearing No,F.S.A. 62780, dated 11-2-2004 of Rs,10,00,000 (one million) drawn on Union Bank Ltd., F-7 Martaz, Islamabad in favour of respondent- defendant No,1 and also paid Rs,100,000 (one lac) in cash, to him. On 11-2-2004 petitioner-plaintiff, realizing his mistake informed the respondent No,1 that Cheque No,FSA 62780, handed over to him, was inadvertently issued from his foreign currency account Cheque book, whereas the Cheque was to be issued in rupee account, whereupon the respondent-defendant No,1 personally visited the petitioner-plaintiff's office and got another Cheque bearing No,CD 403359, dated 11-2-2004 for a sum of Rs,1000,000 (one million) drawn on Union Bank Limited Islamabad with specific endorsement on its back to the effect that "this cheque issued to Mr. Shah Jahan Khetran as token money for membership of ISE against cheque No,62780 which issued wrongly." Respondent- defendant No,1 ensured that said Cheque No,FSA 62780 would be returned. Thereafter another amount of Rs,500,000 (five lacs) was also paid to the respondent-defendant No,1 by the petitioner vide Cheque No,CD 403361, dated 14-2-2004, who got encashed both the Cheques bearing No,CD 403359, dated 11-2-2004 and No,CD 403361, dated 14-2-2004. Subsequently the respondent- defendant No,1 did not perform his part of contract and even got lodged an F.I.R. No,36 of 2004 under section 489-P.P.C. With the Police Station Kohsar Islamabad, against the petitioner-plaintiff on the basis of wrongly issued foreign currency Cheuqe No,FSA 62780.
3. Petitioner-plaintiff filed suit for specific performance of contract as well as permanent injunction against the respondent-defendant No,l. Respondent-defendant No,1 filed his written statement.
Issues were framed and suit was fixed for recording of evidence of the petitioner-plaintiff. On 25-3- 2006 statement of one P.W. Was recorded. Thereafter opportunities were granted to the petitioner- plaintiff for production of remaining evidence and ultimately on failure, vide order, dated 16-5- 2007, his right of evidence was closed by the learned trial Court.
4. Petitioner has alleged that practically there were only two dates of hearing i,e, 10-6-2006 and 17- 7-2006 when the suit was fixed for recording of evidence and there was no occasion for the learned trial Court to invoke penal provisions of Order XVII Rule-3 C.P.C.
5. Learned counsel for the petitioner argued that trial Court was not justified in passing the impugned order; valuable rights of the petitioner are involved and law favours adjudication on merits and discourages the decision based on technicalities. He relied upon "Irshad Ali and another v. Munawar Khan (2001 CLC 1899 (Peshawar), Hadi Bakhsh v. Additional District Judge and others (1998 CLC 610 (Lahore) and Zahoor Ahmad v. Mehra, through legal heirs and others (1999 SCM R 105 (Supreme Court of Pakistan)".
6. On the other hand learned counsel for the respondents placed reliance on "Allah Ditta and others v. Hafiz Zahoor Ahmad and another (1993 CLC 1359 (Lahore), Muhammad Asghar and another v.
Muhammad Ashraf and 6 others (2006 YLR 166 (Lahore), Riaz Hussain v. Sardar Riaz Hussain and others (2003 M LD 1252 (Lahore)) to contend that petitioner-plaintiff by his conduct had compelled the Court to resort to penal provision.
7. Heard, record perused.
8. Plaintiff evidence was available on 25-3-2006 when one witness was examined while case was adjourned to 8-4-2006 by the court, not at the request of the plaintiff. Again, it was adjourned to 6- 5-2006. On this date, the learned the Presiding Officer was on leave resultantly the case was adjourned to 10-6-2006 and it was again adjourned, with last opportunity, for 17-7-2006. On 17-7- 2006, plaintiff secured an adjournment with last opportunity at the cost of Rs,100 for 26-9-2006 on which date case was transferred to another court. Plaintiff appeared before the transferee court on 25-1-2007. Case was again adjourned with last opportunity to 5-4-2007 and last opportunity was granted for 16-5-2007, on which date evidence was not available, hence provisions of Order XVII, Rule 3, C.P.C. Were invoked.
9. The suit relates to specific performance of an agreement involving valuable rights. The defendants in their written statement pleaded that no concluded agreement was executed, however, negotiations were carried and the plaintiff agreed to purchase the said seat for B Rs,110,00,000 (Rupees one crore and ten lacs) and paid an amount of Rs,15,00,000 (Rupees fifteen lacs) and balance was to be arranged for payment within fortnight which he failed within the stipulated period. Admittedly, a portion of the amount has been paid to the defendant.
10.Judgments cited by both the sides, supporting their contentions, lay down a rule that if a party by its conduct makes it difficult for the court and compels it to resort to the provisions of Order XVII, Rule 3, C.P.C., then no alternate is left for the court. However, in matters of valuable rights technical knock out was not recommended. C Substantial justice has been the paramount consideration and desire of the courts to minimize the chances of injustice. Litigants are not to be allowed to have the leisure and luxury of the court proceedings by sheer wastage of time and cause delay to prolong the agony of the other side. This practice can well be arrested by burdening the defaulting side with heavy cost.
11.The suit is yet at the stage of arguments, in spite of closure of evidence by the impugned order. I am of the view that it will be appropriate that one last opportunity be granted to the petitioner- plaintiff to produce his evidence subject to payment of sum of Rs,20,000 cost (twenty thousands only) to the contesting respondent Not. In this view of the matter, this petition is allowed. Impugned order is set aside. Petitioner-plaintiff shall produce his entire evidence, subject to payment of Rs,20,000, on 11-2-2009. No further opportunity will be granted on any count.
12. The record of this case be requisitioned from the trial Court as valuation wise this suit is triable by this Court.