This judgment will also dispose of Writ Petition No. 967 of 1984 as questions of law and facts are common in both of them.
2. In this Constitutional petition, order dated 25-4-1984. Passed by learned District Judge, Multan, dismissing petitioner's revision petition against order dated 28-6-1983 passed by learned trial Court for dosing the evidence of the petitioner in the suit filed by Respondents Nos3 and 4 hai been called in question.
3. The facts relevant for disposal of the writ petition shortly stated are that one Mst. Anwar Jan (predecessor-in-interest of respondent No. 5) and respondent No. 5 in the connected writ petition were granted Government land under Colonization of Government Lands Act, 1912 as Islamabad Oustees. According to the case of the petitioner she agreed to sell this land through agreement of sale dated 15-9-1974, to the petitioner for an amount of Rs.45,000.00 out of which an amount of Rs.40,000 was allegedly paid and remaining amount of Rs.5,000 was agreed to be paid after the conferment of proprietary rights on her. The proprietary rights were granted to the respondent No. 5 on 25-10-1974.. The land in dispute measures 103 Kanals; 7 Marlas which is situated in Chak No. 129/10-R District Khanewal. After the conferment of proprietary rights on respondent No. 5 the land was transferred to the petitioner through mutation No. 99 sanctioned on 26-10-1974.
4. Respondent No. 3 and 4 filed suit on 18-11-1974 for possession of land alleging that the same was sold to them by Mst. Anwar Jan deceased and by respondent No. 5 in the connected writ petition through registered sale-deed dated 10-10-1974. It may be mentioned here that according to the learned counsel for the parties Mst. Anwar Jan died during the pendency of the suit. The plea taken by Mst. Anwar Jan was that she sold the land to the present petitioner and not to respondents 3 and 4 and the sale-deed on which they based their claim and filed the suit was forged and fictitious document.
5. After the settlement of issues the learned trial Court since 2-4-1976 fixed the case for evidence of both the parties from time to time and due to non production of evidence by respondents 3 and 4 i.e the plaintiffs the evidence could not be recorded. Ultimately the Court started passing orders for recording evidence of the plaintiffs only. The -respondents 3 and 4 took more than five years to complete the evidence as ultimately on 28-10-1981 the learned counsel for the plaintiffs after examining the witnesses other than the plaintiff, made a statement for dosing plaintiffs, affirmative evidence except the statement of one of the plaintiffs as his own witness and right was reserved to examine him after the evidence of the present petitioner was recorded, both in affirmative as also in rebuttal. The case was a djourned to 1-3-1982 for recording evidence of the present petitioner. On this date the learned Presiding Officer of the Court was on leave and the case was adjourned to 5- 6-1982 by the reader of the Court. On this date the evidence of the petitioner was not present and on his request the case was adjourned to 28-11-1982 for evidence at his own resposibility. On 28-11- 1982 the Presiding Officer was again on leave and the reader of the Court adjourned the case to 9-2-1983. On 9-2-1983-the evidence of the petitioner was not present and the case was adjourned at their request to 17-4-1983. On 17-4-1983 the evidence of the petitioner could not be recorded as the sister of his witness had died. The case was adjourned to 28-&1983. On this date learned counsel for the petitioner appeared and the learned trial Court proceeded to pass order for closing the evidence of the petitioner on the ground that neither the petitioner nor his witnesses were present.
6. The petitioner feeling aggrieved filed revision petition to challenge the said order passed by learned trial Court which has been dismissed by order dated 25-4-1984 by the learned District Judge, Multan which has been assailed in this writ petition.
7. Learned counsel for the petitioner argued that on 28-&1983 the case was,called at early hours -of the day and petitioner along with his witnesses reached the Court premises after the said order had been passed. His argument was that the learned trial Court proceeded in haste for passing order for closing the evidence of the petitioner. He argued that this ground was specifically taken in the memo of revision petition and argued before the learned District Judge but the same has not been considered in deciding whether the discretion in the matter has been properly exercised by the learned trial Court in favour of passing very harsh order which is penal in nature depriving the petitioner of his right to defend the case properly. He also maintained that the procedure adopted by learned trial Court in recording evidence was not proper which has prejudiced the case of the petitioner resulting in the impugned order which has caused miscarriage of justice. He argued that according to the procedure the plaintiff was required to produce his entire affirmative evidence before the defendant/petitioner was called upon to produce evidence in rebuttal whereas in this case the plaintiffs reserved their own evidence as their own witnesses to be recorded after the evidence of the petitioner both in rebuttal and affirmative. In support of this argument, he relied upon judgments reported as Al-haj Khalil Ahmad v. The Australasia Bank Ltd., Lahore and another 1979 CLC 494 and Murid Hussain v. Muhammad Lal 1987 CLC, p.101. His concise submission was that since the petitioner could not be called upon to produce evidence till such time the plaintiffs had got their statements recorded as their own witnesses in affirmative evidence no jurisdiction was vested with the learned trial Court to pass any order for closing evidence of the petitioner as such the impugned order dated 29-6-1983 being wholly without jurisdiction is not sustainable.
8. The arguments of learned counsel for the petitioner have considerable force. The record of the learned trial Court which was summoned and is available shows that the statement of one of the plaintiffs as his own witness was reserved for recording both in affirmative and rebuttal after the evidence of the petitioner. This procedure according to principle laid down in the abovementioned two reported judgments was not permissible. The petitioner could not be called upon to produce evidence till such time the complete affirmative evidence was produced by the plaintiffs including their own statements as witnesses. The orders passed subsequent to the statement of learned counsel for respondents 3 and 4 for reserving their evidence in affirmative to be produced after the evidence of the petitioner calling upon the petitioner to produce his evidence and fixing the date for that purpose are not sustainable in law and could not be the basis for passing any order for closing their evidence. The Court was also party to this illegality because the respondents 3 and 4 should not have been allowed to reserve the right to produce affirmative evidence of the plaintiffs at rebuttal stage. It is well settled law that no ad of the Court should be allowed to prejudice the rights of the parties.
9. 1 have also noticed from the record that the respondents 3 and 4 were given the adjournments after adjournments without any reason at their convenience though they repeatedly failed to produce evidence and took about more than five years to complete affirmative evidence. The learned trial Court had been showing indulgence to respondents 3 and 4 by taking lenient view regarding adjournments sought. The petitioner was entitled to be treated alike and instead of taking strict and technical view of the matter the learned trial Court was required to take into consideration all circumstances including the indulgence shown to respondents 3 and 4 while deciding as to whether discretion in this case should have been exercised in favour of closing the evidence which is penal action or the other order could be passed in order to do justice. On two of the dates of hearing fixed by the Court for the evidence of the petitioner the Presiding Officer of the Court was on leave therefore no blame could be placed on the petitioner for adjournments caused on those two pet dates and the same could not be attributed to the petitioner. It is well settled law that where a discretion is vested with an authority, the same is to be exercised justly, properly and judicially and not arbitrarily and whimsically. The D learned trial Court appears to have proceeded with undue haste in passing the order for closing the evidence of the petitioner, which is highly arbitrary.
10. The petitioner raised specific plea in the grounds of revision that the case was called in the early hours of the day and while the petitioner had not reached the Court premises with his witnesses, the Court had already passed the order. This ground has been reiterated in this writ petition which is supported by an affidavit. Respondents 3 and 4 in their written-statement in corresponding para No. 3 of the writ petition have not specifically denied the said assertion. Their reply is rather evasive as they have stated that there was nothing in the order of the Court to show that the case was called at early hours of the day.
11. Seen from whatever angle, the order passed by learned trial Court dated 28-6-1983 suffers from jurisdictional defect inasmuch as the petitioner could not be called upon to produce the evidence till the completion of the affirmative evidence of respondents 3 and 4 and that the discretion has been exercised arbitrarily without application of judicial mind to the facts ana circumstances of the case as mentioned above. The order passed in the revision petition is also not sustainable for the same reasons.
12. This writ petition is accepted. The orders passed by the two Courts below dated 28-6-1983 and 25-4-1984 are hereby declared to have been passed without lawful authority and of no legal effect and quashed. In the result, the learned trial Court shall proceed to record the remaining affirmative evidence of respondents 3 and 4 and thereafter call upon the petitioner to produce the evidence in rebuttal. The parties are left to bear their own costs.