' SYED IFTIKHAR HUSSAIN SHAH, J.---The petitioners have called in question the legality of order dated 15-3-2012 passed by the learned Civil Judge, Jampur whereby the right of the petitioners to produce the evidence was closed and order dated 15-3-2012 passed by the learned Additional District Judge, Jampur whereby an appeal preferred by the petitioners against the aforesaid order, was dismissed.
2. Succinctly, the facts of the case are that the respondent instituted a suit for possession through pre-emption in respect of land measuring 33-Kanals and 4-Marls against the present petitioners.
The present petitioners contested the suit and from the divergent pleadings of the parties, learned trial Court framed the issues.
3. The respondent concluded his evidence on 21-9-2010 and thereafter several opportunities were granted to the present -petitioners to produce their evidence but they have failed to produce the same and consequently their right to produce the evidence was closed on 18-10-2011. The petitioners being aggrieved by the said order, preferred an appeal before the learned Additional District Judge, Jampur which was also dismissed vide impugned order dated 15-3-2012. Hence, this revision petition.
4. Learned counsel for the petitioners has contended that the learned trial Court has not provided adequate opportunities to the petitioners to adduce their evidence, which was closed arbitrarily, therefore, the impugned orders are not in accordance with law, which are liable to be reversed.
5. On the other hand, learned counsel for the respondents has contended that several opportunities were granted to the petitioners to produce their evidence but they failed to produce the same, hence their evidence has rightly been closed. Relies, on cases titled "Riaz Hussain v.
Sardar Riaz Hussain and others (2003 M LD 1252 [Lahore])", "Mehfooz Ahmad v. Messrs Sharif Agri Industries through Managing Partner and 2 others (2009 CLC 343 [Lahore])", "Fayyaz Hussain and others v. Khitim Hussain (2010 M LD 163 [Lahore])" and "Maulvi Abdul Aziz Khan v. Mst. Shah Johan Begum and 2 others (PLD 1971 Supreme Court 434".
6. I have heard the learned counsel for the parties and have perused the record.
7. The issues were framed in this case on 27-2-2009 and the respondent concluded his evidence on 21-9-2010 and the case was fixed for evidence of the present petitioner for 6-10-2.010, On 6-10- 2010 the evidence of the petitioners was present but it could not be recorded due to the strike of the local bar and the case was adjourned for 8-11-2010. On 8-11-2010 and 8-12-2000 the evidence of the petitioners was not present and the case was adjourned to 6-1-2011 and on the said day, learned counsel for the respondent was not present and the case was adjourned for 9-2-2011. On 9-2-2011 learned counsel for the respondent was not present and case was adjourned to 1-3-2012.
On 1-3-2012 the Advocates were observing strike and case was adjournment for 29-3-2011. On 29- 3-2011 the evidence was present but the Advocates were observing strike and the case was adjourned for 20-4-2011. On 20-4-2011 the Advocates were observing strike and the learned Presiding Officer had also been transferred and the case was adjourned for 10-52011. On 10-5-2011 the evidence was not present and case was adjourned for 18-5-2011. On 18-5-2011, the evidence was not present and the case was adjourned for 2-6-2011. On 2-6-2011 the Advocates were observing strike and the case was adjourned for 14-6-2011. On 14-6-2011 and 27-6-201i the evidence was not present and case 'vas adjourned for 13-7-201i. On 13-7-2011, learned counsel for the petitioners had gone to perform Umra and the case was adjourned for 28-7-2011. On 28-7-2011 the witnesses of the petitioners were present but the learned counsel for the petitioners was not present and the case was adjourned for 14-9-2011. On 14-9-2011, the Presiding Officer was on leave and the case was adjourned for 15-9-2011. On 159-2011 the evidence was not present and the Advocates were observing strike and the case was adjourned for 1-10-2011. On 1-10-2011 the evidence was not present and the learned counsel for the respondent was also not present and it was the clerk of the learned counsel, who was present in the Court and case was adjourned for 18- 10-2011. On 18-102011 the evidence of the petitioners was not present and the evidence was closed but it is pertinent to mention here that on the said day, even learned counsel for the respondent was not present and it was his clerk who marked his presence throughout the day. There is no provision of law that a clerk of Advocate can represent and appear on behalf of any party during the proceedings of a case but it has been observed in this case that on several occasions, learned Presiding Officer marked the presence the clerk of learned counsel and proceeded to close the evidence of the petitioners. It was incumbent upon the learned Trial Court to also proceed against the respondent in accordance with law due to his non-appearance either himself or through counsel.
7(sic). Order III, Rule 1 of Civil Procedure Code (Act V of 1908), deals with the appearance in the Court, by the parties or their recognized agents or by pleader, which reads as under:- "Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by any pleader [appearing, applying or [appearing, applying or acting, as the case may be,] on his behalf; ' Provided that any such appearance shall, if the Court so directs be made by the party in person."
The Civil Procedure Code does not recognize the status of counsel's 'clerk and clerk cannot be marked present in place of his counsel in the judicial proceedings. The learned trial court has committed material irregularity and illegality by marking the presence of the clerk.
8. In this case the evidence of the petitioners remained present on so many dates but it could not be recorded due to one reason or the other due to the absence of learned counsel or due to the strike of the local bar and on the particular date when the evidence was closed, neither the respondent nor his counsel was present in the court. The plaintiff/respondent remained un- represented on the day the impugned order was passed, therefore, the learned trial Court should have granted another opportunity to the petitioners to produce their evidence. Law favours the adjudication of dispute of the parties on merits and the technicalities of law should always be avoided to meet the ends of justice. The case-law produced by the learned counsel for the respondent is not directly applicable to the facts and circumstances of the present case. Learned trial Court has closed the evidence of the petitioners arbitrarily in spite of the fact that neither the respondent nor his counsel was present in the Court. Learned Additional District Judge also did not look into this aspect of the case. Therefore, both the impugned orders are not in accordance with law, the same are liable to be set aside.
' In view of above, this revision petition is allowed and the impugned orders passed by both the learned Courts below are set aside. The learned trial Court is directed to provide one opportunity to the petitioners to adduce their evidence subject to the payment of cost of Rs,2000/-. Copy of this order be sent. To the learned District Judge Rajanpur as well as the learned Addl. District and learned Civil Judge for future guidance.