MUHAMMAD AMEER BHATTI, J:- This civil revision under Section 115 CPC is directed against the judgments dated 27.05.2008 and 10.07.2009 passed by both the learned Courts below whereby the application for setting aside exparte judgment and decree dated 21.05.2002 and appeal whereof were dismissed.
2. The brief facts of the case are that the respondent filed a suit for recovery of Rs.50,000/- which was exparte decreed by the learned trial Court vide judgment and decree dated 21.05.2002. After acquiring knowledge of the said judgment and decree, the petitioner filed an application for its setting aside on 20.06.2002. The respondent resisted the said application by filing written statement. The learned trial Court framed following issues out of divergent pleadings of the parties.
ISSUES.
1. Whether the exparte judgment and decree of the Court dated 21.05.2002 is liable to be set aside?
OPP 2.
2. Relief.
3. After framing of issues, the case was fixed for recording evidence of the petitioner and right to adduce evidence was closed in terms of Order XVII Rule 3 CPC on account of non-production of evidence despite providing adequate opportunities and as a consequence thereof the application was dismissed for lack of evidence. Appeal whereof also met with the same fate, hence this revision petition.
4. The precise contention of learned counsel for the petitioner on the strength of law laid down by Hon'ble Supreme Court reported as Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others (2014 SCM R 637) and Rana Tanveer Khan v. Naseer-ud-Din and others (2015 SCM R 1401) is that it was the legal obligation of learned trial Court at least to record statement of petitioner when the order impugned qua closing of evidence was passed as he was in attendance and therefore, the fate of the application could have been decided accordingly and by not exercising the power the learned trial Court had committed material illegality and irregularity and this fateful aspect of the case had been overlooked by the learned first Appellate Court rendering both the impugned judgments un-sustainable in the eye of law.
5. I have considered the contentions of learned counsel for the petitioner and gone through the record as well as judgments of Hon'ble Supreme Court referred supra.
6. The Hon'ble Supreme Court of Pakistan in a case reported as Rana Tanveer Khan v. Naseer-ud- Din and others (2015 SCM R 1401) reiterated the view taken in the judgment Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others (2014 SCM R 637). Therefore, it would be expedient to re-produce the relevant portion of the said judgment which is under:- "In the above context, it may be held that in every case where the action against a delinquent party is imperative and his evidence has to be closed because the case squarely and eminently falls within the mischief of Order XVII, Rule 3, C.P.C., the Court while closing the evidence is not in any manner obliged to adjourn the case and require or ask the litigant to appear and examine himself as a witness on a subsequent date. Obviously if the party is present in the Court and desires to appear as a witness the Court should not decline his request, rather it shall be appropriate that where the party is present, the Court while applying Order XVII, Rule 3, C.P.C, and closing the evidence on a given date should itself ask the party to avail the chance of appearing as his own witness, and should also record such fact in its order (order sheet) that a chance was given to the litigant which has not been availed. However, if this fact is not so recorded by the Court though the party was present and sought its examination such party should initially move an application to the Court for examination of the case has not yet been decided. But where the case is finally decided a ground should be specifically set in the memo of appeal/revision as the case may be about the presence of the party and asking for the examination, which should be supported by an affidavit of the counsel of the said party to the above effect."
7. As regards the contention of learned counsel for the petitioner that he was present on the day when his evidence was closed whereas his statement ought to have been recorded and this fact alone un-justifies exercise of power in terms of Order XVII Rule 3 C.P.C. Irrespective of the fact that he failed to produce the evidence availing numerous opportunities including provision of last one, has substance. After examination, it is established from record as well as interim order sheet of learned trial Court that the petitioner had attended the Court proceeding rather he himself filed the application seeking adjournment, therefore, it was paramount duty of the learned trial Court to offer him to appear in the witness box in order to get his statement recorded which it failed to perform, whereas this fact has further been proved by taking the ground in the memo of appeal alleging that despite his presence his statement had not been recorded which obviously rendered application of provision of Order XVII Rule 3 CPC un-warranted being violative of the guidelines approved by Hon'ble Supreme Court. Although the procedure provided for invoking the penal clause has been followed but said deficiency does reflect as is floating on the surface of record and this stance as stated above has specifically been taken by him in the memo of appeal and also established from the interim order dated 27.05.2008 which indicates as under:- "petitioner has moved an application for adjournment in order to produce the evidence".
8. In nutshell, the Hon'ble Supreme Court has appreciated recording of statement of delinquent party who was present at the time of closing of evidence which has the binding force in view of Article 189 of the Constitution of Islamic Republic of Pakistan. Keeping in view the factual assertions mentioned hereinabove and also the principle laid down by Hon'ble Supreme Court, it is crystal clear that the learned trial Court failed to record petitioner's statement who remained present when penal provisions of Order XVII Rule 3 CPC were exercised depriving the petitioner of his legal right. It is true that the circumstances did favour exercise of penal provision but it is also equally true that by not offering the petitioner in attendance to get his statement recorded, the learned trial Court failed to fulfill its legal obligation, which deficiency brings its order within mischief of material illegality and irregularity. This fateful aspect has eluded the attention of learned first Appellate Court warranting interference by this Court. Hence, I have no option except to declare that both the learned Courts below concluded the proceedings contrary to the guidelines given by Hon'ble Supreme Court of Pakistan in the judgments referred supra and cannot sustain in the eye of law on any canon of justice.
9. For what has been discussed above, the instant revision petition is allowed, impugned judgments dated 27.05.2008 and 10.07.2009 are hereby set aside and case is remanded to the learned trial Court to the extent of recording of testimony of petitioner by providing one clear cut last opportunity whereafter by recording evidence of other side, fate of the application be re- determined, strictly in accordance with law.
10. The parties are directed to appear before the learned Senior Civil Judge, Chakwal on 05.11.2015 who shall take-up this matter either himself or entrust it to any other Civil Judge for adjudication as per law.
11. Before parting with this order, I would like to observe that this matter is hanging fire since, 2009 and respondent did not bother to appear so he is proceeded exparte in these proceedings, however, the learned trial Court shall issue notice to him, as required by law after its entrustment.