Declining application under Order VI Rule 17 C.P.C

 4. So far as the matter with regard to non-production of evidence is concerned, I have examined the case of petitioner in the light of judgment of Hon’ble Supreme Court reported as Rana Tanveer Khan v. Naseer-ud-Din and others (2015 SCMR 1401) and I am of the affirmed view that the petitioner has not been granted adequate opportunity to lead evidence. On 23.02.2011 by rejecting the application under Order VI Rule 17 C.P.C. for seeking amendment in the plaint, the case was adjourned for 16.03.2011 for production of evidence and on the said date, the petitioner obtained time for production of evidence which was although granted but with caution that on account of non-production of evidence, her right to lead evidence will be closed and case was fixed for 21.03.2011 (after 5-days) and on the said date on account of non-availability of evidence, her right was struck off and suit was dismissed. Hon’ble Supreme Court in a case referred supra wherein the delinquent party had availed four opportunities with caution and for that reason Hon’ble Supreme Court held it enough and sufficient to meet the ends of justice but in the instant case only one opportunity was given to the petitioner, hence the view taken by the learned trial Court in not granting another opportunity to lead evidence by imposing cost is hereby declared harsh. I find it a fit case where this Court must exercise the power provided under Section 115 C.P.C., to rectify the wrong done by both the learned Courts below. Consequently, this revision petition is allowed, the order dated 23.02.2011 passed by the learned trial Court refusing to grant amendment in the plaint qua incorporation of subsequent transactions done by the defendants/respondents, is hereby set aside, as a result whereof, said application is allowed and the petitioner is permitted to incorporate all those transactions which had been made by the defendants in favour of other persons but before filing of suit and file the amended plaint accordingly within a period of 15-days from the date of entrustment of this case to the learned trail Court. Although on account of grant of permission for filing amended plaint the order and decree dated 21.03.2011, whereby the suit of the petitioner was dismissed on account of lack of evidence has become redundant, hence I set aside the same not only on this ground but also on the ground that adequate opportunity to lead evidence was not granted to the petitioner. At the same time the judgment of the learned first Appellate Court who did not adequately meet with the grounds taken in the memo of appeal with regard to the order passed by the learned trial Court declining application under Order VI Rule 17 C.P.C. being defective in this regard is also set aside, as a consequence whereof, the suit of the petitioner shall be deemed to be pending before the learned trial Court which shall re-adjudicate the same after receiving amended plaint and written statement in terms mentioned above.

Part of Judgment 

IN THE LAHORE HIGH COURT, LAHORE.

Civil Revision
839-12

2017 LHC 4767