1994 M L D 174 [Lahore] Before Mian Ghulam Ahmad, J. - TopicsExpress



          

1994 M L D 174 [Lahore] Before Mian Ghulam Ahmad, J. Mst. KANIZ FATIMA ---Petitioner versus GHULAM MUSTAFA---Respondent Civil Revision No. 183-D of 1993, heard on 27th October, 1993. (a) Civil Procedure Code (V of 1908)--- ----O.XVII, R.3---Right to seek adjournment of case---First date fixed for evidence of plaintiff---Defendant seeking adjournment on ground that his counsel was participating in local council election and was thus not available--­Trial Court refusing to adjourn case in order to comply with direction of High Court for disposal of suit within specified time---Defendant engaging another counsel who while submitting power of attorney made request for adjournment of case but adjournment was not granted---Defendants counsel could not cross-examine plaintiffs witnesses---Effect---Direction of High Court apart, statutory provisions, legal norms and dictates of justice could not be lost sight of---trial Court was well within its rights to have given a further adjournment, might be of a very short duration; but defendant ought to have been afforded another chance for evidence when she had been unable to cross-examine plaintiffs witnesses or adduce her evidence on specified date, i.e. first date fixed for the purpose---Effect of not granting one adjournment to defendant was that plaintiffs witnesses remained without cross-examination which being a very vital right of a party, unless Court came to an express conclusion that defaulting side had been guilty of contumacy or obduracy, it should not be deprived of such valuable right---Defendant was entitled to at least one more chance, before penal provisions of OXVII, R.3, Civil procedure Code were pressed into service against her---Court had thus, committed material irregularity in pasting very stringent order---Case was remanded to Trial Court for its re-decision on merits, after affording to parties a reasonable opportunity for producing their evidence, within a maximum period of six months. (b) Qanun-e-Shahadat (10 of 1984)---- ----Art.132(2)---Cross-examination being a very vital right of a party, unless Court came to an express conclusion that defaulting side had been guilty of contumacy or obduracy; it (party) should not be deprived of such valuable right---Statement of a witness who was not subjected to cross-­examination would not constitute evidence in the legal sense of the term. PLD 1992 SC 811 and PLD 1990 SC 1 rel. (c) Duty of Court--- ---- Duty was cast upon Court to procure from parties to litigation, evidence needed for adjudication of dispute. [Administration of justice]. (d) Counsel and client---- ---- Lawyers have familiarly been in the habit of taking things in Courts lightly, and particularly when one has a personal piece of business to attend to, they cannot conceive of refusal on the part of Court in the matter of their accommodation---Counsel should stop being complacent and should shed such attitude of indifference to cases in Courts. (e) Duty of Court---- ----Disputes relating to inheritance---Court, in matter of inheritance could not afford to be too technical and should not be very rigid in matters of conduct of proceedings; care should be taken to ensure that such disputes were resolved on merits, in the light of evidence. [Administration of justice]. (f) Evidence-- ---- Statement of witness who is not subjected to cross-examination does not constitute evidence in strict legal sense. Muhammad Amir Bhatti for Petitioner. Mian Mushtaq Ahmad for Respondent. Date of hearing: 27th October, 1993. JUDGMENT Revision petition is directed against the judgments and decrees, dated 12-9-1992 and 16-3-1993, rendered respectively by Mr. Muhammad Iqbal Khan, Civil Judge, Arifwala and Mehr Ghulam Farid Khan, Additional District Judge, Sahiwal, decreeing Mustafas civil suit filed against Kaneez Fatima for a declaration, permanent injunction, as also possession. 2. Originally the suit was filed on 3-4-1984 for a declaration with consequential relief in the form of perpetual injunction. Inheritance of one Chand Khan, the last male holder of the land measuring 105 Kanals and 8 Marlas, situate in Chak Shari, Tehsil Pakpattan was in dispute. Imam AN had two sons, Noor Khan and Fajar Ali. Chand Khan was son of Noor Khan and Mustafa was son of Fajar Ali, and thus Chand Khan and Mustafa were first cousins (Chachazad). Kaneez Fatima claimed to be grand-daughter of Chand Khan, being daughter of his predeceased son Ziledar. On Chand Khans death, Mutation No. 1119 was on 31-8-1980, sanctioned and the entire estate was mutated in the name of Kaneez Fatima, who pleaded, she was a Shia by faith. This caused grouse to Mustafa, who laid a claim to the whole estate left by Chand Khan, pleading to be his exclusive heir. It was preliminarily held by the trial Court that Mustafa plaintiff, being out of possession of suit-land, the suit in its original form could not proceed. It was dismissed on 13-6-1989. Mustafa went up in appeal, which was accepted and the case was remanded. Kaneez Fatima preferred a revision petition (No.594 of 1990), which is still pending. On incorporating prayer for possession of the property, the plaintiff amended his suit and filed the amended plaint on 24-10-1991. Written statement was submitted on 21-11-1991, and additional issues were recorded on 2-12-1991. The plaintiff was called upon to produce his evidence on 19-12-1991. Plaintiffs witnesses were in attendance on the date fixed, i.e. on 19-12-1991, but the defendants counsel, Mr. War Ullah Bhangu, Advocate made a request for an adjournment. The same however, was not acceded to, and the learned Advocate was asked to make preparation. The case was taken up again at 11-30 a.m. when it was reiterated that the learned counsel for the defendant must get himself ready, as there was no room for postponement of the proceedings. Third call was made at 1 p.m., when one Ch. Muhammad Sharif, Advocate filed a Vikalatnama as counsel for Kaneez Fatima defendant, whose special attorney, Muhammad Rafiq made a request for an adjournment, so that the newly-engaged counsel could prepare his `brief. The prayer was however turned down. Four witnesses, including the plaintiff, made their statements, on the same day (on 19-12-1991), but they were not cross­-examined, as even the new counsel left, in the midst of the proceedings, saying that he had been engaged on the same day and had no time to study the case. The Presiding Officer of the Court was on leave on 9-1-1992, and again on 30-1-1992, and the case was taken up next on 22-2-1992, when an application filed by the defendant under section 151, read with Order 18, rule 17, C.P.C., was considered and rejected by the trial Court, the prayer being that the plaintiffs witnesses be recalled for cross-examination by the defendants counsel. The defendant preferred a revision petition, but the aforesaid order, dated 22-2-1992 was upheld, on 27-7-1992, by learned Additional District Judge, Sahiwal, Mehr Salabat Khan. Against the said order, the defendant filed a Writ Petition (No.2751 of 1992). On entertaining the writ petition, on 9-9-1992, initially, it was ordered that the learned counsel for the defendant should file an affidavit about his having some personal engagement on 19-12-1991, when, for that reason, he had expressed inability to cross-examine the witnesses of the plaintiff. 3. Learned counsel for the defendant-petitioner has drawn the attention of the Court to the order, dated 22-2-1992 of the learned trial Court, in which emphasis has been laid on certain directions, general or specific, issued by the High Court, to the effect that old cases should be given preference, and 3 years old cases should be disposed of by a particular date. Attention has also been drawn to the vernacular order, dated 19-12-1991, stating that the case in hand was required to be disposed of finally by 30-11-1991. The learned counsel maintains that the suit, in its original form; had been held to be un-maintainable. With the added prayer for possession of the land in dispute, the suit, in amended form, had been filed on 24-10-1991 and the suit thus should have been deemed to have been instituted afresh on 24-10-1991, and not on 2-4-1984. This contention however does not appear to be correct, for the suit had not been withdrawn and filed afresh. The suit had, of curse, been dismissed on 13-6-1989, but on appeal it had been remanded and plaint had been amended on 24-10-1991, and this incidence was in continuation of the proceedings initially launched in April 1984. It is however, to be borne in mind that the target date, viz. 30-11-1991, had already passed, when on 19-12-1991, the Court had, after framing the issues, directed the plaintiff to lead his evidence. For the developments that intervened between the date of institution of the suit and the crucial date i.e. 19-12-1991, and the delay that had been caused in the disposal of the case, no particular party was at fault; at least the defendant was not responsible for the same; it was for the first time that a date had been fixed for evidence of a party, on merits. 4. The learned Civil Judge, in his order, dated 22-2-1992, has said that the defendant did not make the application before 22-2-1992. In this regard. it has been submitted by the learned counsel for the defendant-petitioner, that the application had been drafted on 9-1-1992, but as the Court had not functioned, by reason of absence of the Presiding Officer, on 9-1-1992, as also on 30-1-1992, the application was presented in the Court on 22-2-1992, and there the defendant could not be held to be at fault. Ch. Muhammad Zafar Ullah Bhangu, Advocate had sworn and affidavit on 1-1-1992, the same being Annexure `F-1, attached with the defendants application Annexure `F, and goes a long way to show that the defendant had displayed no negligence in making a renewed request for permission being granted to her counsel for cross-examining the witnesses of the plaintiff. Ch. Muhammad Zafar Ullah was participating in local bodies election and on 19-12-1991 election symbol had to be allotted to him, as a candidate, and he had therefore made a request for an adjournment. It is so well known that it may be any election, a candidate is under untold stress and strain, and he is not only physically but even mentally involved. For cross-examining witnesses of a patty, the opposing counsel has evidently to make adequate preparation and, at the same time,, he needs good deal of peace and composure of mind, for giving proper attention to that important exercise. The learned counsel for the petitioner has aptly urged that Courts have always been accommodating Advocates, and especially when a request for postponement of hearing of a matter is made by an Advocate, by reason of his personal engagement, it is generally honoured and acceded to. It has mistakenly been inferred by the learned Additional District Judge, in the course of his order, dated 27-7-1992, that the defendant or her counsel was ­only interested in procrastinating the proceedings and that although `full opportunity was provided to the party and her counsel, the same was not availed of wilfully, on no valid premises. The original counsel for the defendant, Mr. Zafar Ullah had to leave, and he was replaced by another counsel, Ch. Muhammad Sharif, Advocate. This was the maximum the defendant or her attorney could do, in the situation, that had been made very tense by the learned trial Judge, who had pinned down the party to cross-examine the witnesses of the plaintiff, which he had started examining. The new counsel had been engaged and he had tendered his power of attorney at 1-00 p.m., and he could not possibly make himself well-conversant with the facts of the case, and guess and gauge the evidence intended to be adduced by the plaintiff, and in that odd and awkward situation must not have found himself well-equipped to undertake the arduous task of cross-examination. He therefore expressed inability to go ahead with the exercise, and preferred to withdraw, with the result that the witnesses of the plaintiff all remained without cross-examination. It will not be disputed that cross-examination is a very vital right of a party, and unless the Court comes to an express conclusion that the defaulting side has been guilty of contumacy or obduracy, it should not be deprived of this valuable right. 5. After the learned Additional District Judge dismissed the writ petition of the defendant on 27-7-1992, the case came up before the trial Court on 29-7-1992. With reference to an earlier order, dated 22-2-1992, the defendant was called upon to bring her evidence on 12-9-1992, August being the month of vacations. On 12-9-1992, the defendants evidence was not available; and it was closed under Order 17, Rule 3, C.P.C. In the said order, as also in the previous order, dated 29-7-1992, the trial Court had once again recorded a note to the effect that it was one of very old cases and the defendant therefore would not be extended indulgence in the matter of production of his evidence. The witnesses of the defendant being not in attendance on 12-9-1992, despite the direction dated 29-7-1992, the evidence was closed, and by a judgment pronounced on the same day, the plaintiffs suit was decreed against the defendant. It is to be pointed out that as yet there was not available on record any evidentiary material produced by the defendant and the witnesses of the plaintiff had not been subjected to cross-examination. Learned counsel has not urged, but it is well-settled that statement of a witness who is not subjected to cross-examination does not constitute evidence in the legal sense of the term. Reliance is placed on PLD 1992 SC 811, in support of the argument that, in any case, it is part of the duty of the Court to procure from the parties to the litigation the evidence -needed for adjudication of the dispute. In PLD 1990 SC 1, it was pronounced that the Court should not be oblivious of its duty to secure and safeguard the rights of the female litigants, especially in matters of inheritance. The default on the part of the defendant-petitioner, it is submitted, had occurred on two dates i.e. on 19-12-1991 and 12-9-1992. On the first occasion, by reason of absence of her counsel, she had badly been handicapped and was not in a position to cross-examine the witnesses of the plaintiff; and on the second occasion she could not bring along her witnesses; and this being the first date fixed for the purpose, having not been given at her instance, or on her request, she was entitled to at least one more chance, before penal provisions of Order 17, Rule 3, C.P.C. could be pressed into service against her. This is such a well-known rule of procedure that it no longer requires any authority to substantiate it. 6. Learned counsel for the plaintiff/respondent has come up with the contention that the Court had dealt with both the sides absolutely at par, and there had been no discrimination, as even the plaintiff had been ordered to produce his evidence on the very first date, fixed for the purpose, and he had realized his responsibility and complied with that direction. The defendant in the suit, on the contrary, had exhibited lack of interest in her cause; and it appeared that she and her counsel were out to employ delaying designs. She had originally engaged two counsels, Ch. Muhammad Zafar Ullah and Syed Muhammad Zaidi, Advocates. The former having some personal engagement of political nature, the same was known to him before-hand, and he could have told his client to avail of the services of the other counsel, particularly when she was well aware of the fact that it was a very old suit and the trial Court was bent upon proceeding with it, in right earnest being in no mood to allow indulgence to any side. She however did not take the necessary steps to procure presence of one of her Advocates in the Court, so that the witnesses of the plaintiff could be cross-examined (on 19-12-1991). Afterwards, when date was given for her own evidence, on the case having been adjourned from 27-7-1992 to 12-9-1992, no measures were adopted to ensure compliance with the orders of the Court. The witnesses were neither summoned through Court, nor brought by the defendant herself in the Court, for their examination on 12-9-1992. I would however endorse the contention put forth by her learned counsel that on her failure to lead evidence, on 12-9-1992, the first date fixed for the purpose, she was entitled to at least one more opportunity, even though it was an old case. As already said, although the Court should not have been oblivious of the High Court direction about disposal of the case at the earliest, the target date given, which was 30-11-1991, had gone by, and even though there was no room for further slackening, the fact remains that even the Court did not function on two dates, i.e. 9-1-1992 and 30-1-1992, and the case had to be adjourned to 22-2-1992. Afterwards because of the revision petition having been preferred by the defendant, further progress in the proceedings got stranded till 27-7-1992, when the learned Additional District Judge dismissed the revision petition, and the case (that was taken up on 29-7-1992) had then to be adjourned to 12-9-1992. Direction of the High Court apart, statutory provisions and legal norms and dictates of justice could not be lost sight of. The Court was well within its rights to have given a further adjournment, may C be, of a very short duration; but the defendant ought to have been afforded another chance for her evidence, when she had been unable to adduce her evidence on 12-9-1992, the first date fixed for the purpose. 6. Saying that the learned counsel for the defendant, Ch. Muhammad Zafar Ullah could have spent half an hour in setting his symbol and spared the rest of the time for attending to this case would probably be expecting too much. Lawyers have familiarly been in the habit of taking things in Courts lightly, and particularly when one has a personal piece of business to attend to, he cannot just conceive of refusal on the part of a Court in the matter of his accommodation. I entirely agree that learned Advocates should stop being complacent and should shed this attitude of indifference to cases in Courts; but think, the defendant in the case was not asking for an undue indulgence, when on 19-12-1991 she had prayed for an adjournment, because of non-availability of her counsel, or lack of preparation on the part of the one newly-engaged, and when afterwards, on 12-9-1992, she had made a request for an adjournment for her evidence, in the event of her failure Jo adduce it, on the said date. 7. The learned counsel for the-plaintiff-respondent frankly concedes that if the defendant was at fault, the orders of the lower Courts will hold good, and if she had a legal justification for her failure in making compliance with the Court orders, a case for remand of the matter would be made out. It is additionally submitted that unless jurisdictional errors are pointed out, discretionary orders cannot be interfered with, even if apparently the same suffer from infirmity or error, in certain degree. In view of the above discussion, however, I must say, it has to be assumed that the learned trial Court had committed material irregularity in passing very stringent orders and in being absolutely inflexible in enforcing the said orders, which, on the two occasions, were also endorsed by the learned first revisional/appellate Court below. Very valuable rights of the parties, tagged in the litigation, were involved. Whereas Mustafa plaintiff was disputing relationship of Kaneez Fatima defendant with Chand Khan, the last male holder of the estate in dispute, the defendant too was endeavouring to oust the plaintiff completely from the ambit of inheritance; and the Court could not afford to be too technical and ought not to have been very rigid in the matter of conduct of the proceedings, and care should have been taken to ensure that the dispute was resolved on merits, in the light of the evidence. Kaneez Fatima had conceded that Mustafa was nephew of Chand Khan but Mustafa had disputed her kinship with Chand Khan, as also her entitlement to inherit the entire estate, by reason of professing Shia faith; and these important questions required evidence, which the parties should have been enabled to adduce, in adequate measure, in trial. 8. The contentions raised by the learned counsel for the petitioner are more convincing and are upheld. The reasoning recorded by the Courts below being not quite sound is repelled; and the impugned orders are set aside. The Revision Petition No.594 of 1990 and Writ Petition No.2751 of 1992 filed by Mst. Kaneez Fatima in this Court have obviously become infructuous and are filed. 9. The present revision petition succeeds and is allowed, with no order as to costs. The case is remanded to the trial Court for its re-decision on merits, on affording to the parties a reasonable opportunity for producing their evidence, within a maximum period of 6 months. The parties have been directed to make appearance in the trial Court for further proceedings on 17-11-1993. The records shall be sent back without delay; and a copy of the judgment shall also immediately be communicated to the trial Court, through the learned District Judge, Sahiwal. AA./K-103/L Case remanded.
Posted on: Fri, 12 Dec 2014 16:34:10 +0000

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