MUHAMMAD AMEER BHA TTI, J. This is Regular First Appeal.
Admit. Notice. Record.
2. The respondent' s side, being present in Court on watching brief, accepts notice and agrees to promptly undertake the advancement of arguments. Thus, we regard the case in hand as complete (Pakka) in terms of presence of both the parties and availability of record already attached with grounds of appeal.
3. The suit instituted by the appellant was dismissed by the learned trial Court vide judgment dated 09.10.2019 under Order XVII rule 3, C.P.C. for non-production of evidence despite availing numerous opportunities; as is apparent from the order sheet annexed with the memo of appeal.
4. During course of arguments, it has been noticed by us that appellant although failed to produce evidence, yet to our dismay , the learned trial court ought to have offered her an opportunity to testify before the court while closing her right to adduce remaining evidence which legal obligation had not been fulfilled by not affording such opportunity before closing her evidence. It is unbeatable right of a party present before the court to make a statement to prove the contents of his/her case. It is manifestly clear from the record that she has been deprived of her fundamental right; leading us to the inescapable conclusion that such erroneous exercise of jurisdiction is not consonant with the principles laid down by the august court deprecating such application of law in the following terms: ".......There is nothing on the record to show that after the rejection of his request with regard to his affidavit, the learned trial Court before closing his evidence allowed him to appear as his own witness. It is the right of a party to make a statement in support of its case. This right seems to have been denied to the appellant by the learned trial Court". (1993 SCMR 2026 )
5. It appears that the trial court had been oblivious to the duty enjoined upon him by failing to admit the right of the appellant to appear in the witness box and has thereby erred in law by omitting to exercise its jurisdiction; which amounts to blatantly frustrating legal right of the appellant. In the like situation, the Hon'ble Supreme Court went on to hold that: "In the case of Abdul Wahid v. Ghulam Mujaddad 1989 CLC 697, too, the tenant was given some adjournments for production of evidence. His evidence was ultimately closed and ejectment was ordered. It was held that since on the said date the tenant and his one witness was present, therefore, Rent Controller was bound to record the statement of tenant and testimony of his witness and then to decide the ejectment application on merits after recording his findings on the issues . The case was remanded to Rent Contro ller with direction to dispose of matter after giving an opportunity to tenant to produce whole of his evidence." (2008 SCMR 942 )
6. When confronted with the above noted illegality , suffice to vitiate the proceedings of the learned trial court including the impugned judgment and decree, the learned Law Officer remained speechless and failed to justify to the glaring illegality floating on the surface of record.
7. Foregoing in view, we are constrained to hold that the dismissal of suit forthwith under O. XVII, Rr. 2 & 3 on the premise that the appellant failed to produce evidence is not tenable particularly when the appellant herself was in attendance on the date when suit was dismissed and was not called upon to testify . It was incumbent upon the trial Court, despite non-production of witnesses by appellant, to let her come out with her own version in witness-box instead of dismissing the suit forthwith, in that, such recourse to O.XVII is not warranted by law .
8. At this stage, having regard to the grim situation emerging from the record, both the learned counsels agreed to provide for one last opportunity to the appellant with a cost to the tune of Rs.20,000/-. Learned counsel for the appellant has readily agreed to pay said cost provided one last opportunity is granted to him.
9. In view of the above, with consent of both the parties, we are inclined to set-aside the impugned judgment, as a result whereof, the suit shall be re-adjudicated by the learned trial Court by granting one last opportunity to the appellant to produce her complete evidence subject to the payment of cost of Rs.20,000/- to be deposited in the account of respondents within fifteen days from the date of commencement of the proceedings by the learned trial Court and if she fails to produce the evidence on the date to be fixed by the learned trial Court, her right to produce evidence would be deemed to have been closed. The parties are directed to appear before the learned Senior Civil Judge, concerned, on 07.10.2020, who shall either take up the matter himself or entrust the same to any other learned Civil Judge for adjudication.
10. This appeal stands accepted in the terms indicated above.