--Application for framing of additional issue--Framing of additional issue after recording of evidence--Vested right--Application to re-cross-examination of plaintiff's witness--

 PLJ 2021 Lahore 393

Specific Relief Act, 1877 (I of 1877)--

----S. 12--Constitution of Pakistan, 1973, Art. 199--Civil Procedure Code, (V of 1908), O.XVIII R. 17--Suit for specific performance--Application for framing of additional issue--Accepted--Application to re-cross-examination of plaintiff's witness--Dismissed--Civil revision--Dismissed--Framing of additional issue after recording of evidence--Vested right--Admittedly, Issue No. 3-A was framed after recording of examination and cross-examination on witnesses produced by Respondent No. 1/plaintiff--Mere recording of statement of counsel for Respondent No. 1/plaintiff with regard to relying on earlier recorded evidence does not prevent petitioner/defendant from conducting cross-examination on witnesses in Issue No. 3-A, which was framed later on--Courts below have misconstrued law on subject and have failed to exercise vested jurisdiction in accordance with law while passing impugned orders--Trial Court ought to have allowed application for cross-examination on witnesses of Respondent No. 1/plaintiff only to extent of Issue No. 3-A instead of declining application filed by petitioner because petitioner/defendant cannot be deprived of his vested right in this regard--Petition was allowed.                      [P. 395] A, B & C

M/s. Zahid Sikandar & Ahmad Qayyum, Advocates for Petitioner.

Mr. Zabi Ullah Nagra, Advocate for Applicant/Respondent
No. 1.

Date of hearing: 7.3.2017.

 PLJ 2021 Lahore 393
Present: Shahid Bilal Hassan, J.
Chaudhary ASGHAR ALI--Petitioner
versus
MAQBOOL MASEEH and 3 others--Respondents
W.P. No. 2635 and C.M. No. 662 of 2017, decided on 7.3.2017.

Order

C.M. Wo. 662 of 2017.

This is an application for documenting the main writ petition. Relying on the contents of this application, supported by affidavit and no objection from learned counsel representing the petitioner, this application is allowed subject to all just and legal exceptions.

Main Case

Precisely, the Respondent No. 1 instituted a suit for specific performance against the present petitioner. During pendency of the suit, the petitioner/defendant filed an application for framing an additional issue, which was accepted being conceded by the Respondent No. 1/plaintiff and said issue was framed as Issue No. 3-A by the learned Trial Court vide order dated 14.07.2015. On 26.10.2015, the Respondent No. 1/plaintiff through his counsel stated that the plaintiff would not lead any further evidence in favour of additional issue. The petitioner/defendant filed an application to re-cross examine the plaintiffs witnesses on Issue No. 3-A. The said application was resisted by the Respondent No. 1/plaintiff. The learned Trial Court vide impugned order dated 26.10.2015 dismissed the application filed by the petitioner/defendant; against the said order, the petitioner filed a civil revision which was dismissed vide impugned order dated 24.11.2016. Hence, this writ petition.

2. Learned counsel for the petitioner has argued that the impugned orders are against law and facts of the case; the same have been passed in slipshod, hasty, arbitrary and fanciful manner. Both the learned Courts have passed the impugned orders without applying their judicious mind and the same are based on surmises and conjectures. Adds that even if, the Respondent No. 1/plaintiff opted not to produce any further evidence on additional issue, it does not deprive the petitioner/defendant of his right to cross-examine the witnesses of Respondent No. 1/plaintiff, Order XVIII Rule 17 of C.P.C. is clear in this regard. Learned Courts below have misconstrued the law on the subject, which resulted in miscarriage of justice; therefore, by allowing the writ petition in hand, impugned orders passed by the learned Courts below may be set aside; consequent whereof application filed by the petitioner for cross-examination of witnesses of Respondent No. 1 with regard to Issue No. 3-A may be allowed. Relies on Saleem Jan alias Salman Khan v. Abdul Manan and 2 others (2009 MLD 1127).

3. On the other hand, learned counsel appearing on behalf of Respondent No. 1 by favouring the impugned orders has prayed for dismissal of the writ petition in hand.

4. Heard.

5. Provisions of Order XVIII Rule 17 of C.P.C. are clear on this proposition that the learned Trial Court can summon any witness for examination or cross-examination even if the said witness was already examined. Admittedly, Issue No. 3-A was framed after recording of examination and cross-examination on the witnesses produced by the Respondent No. 1/plaintiff. Mere recording of statement of the learned counsel for the Respondent No. 1/plaintiff with regard to relying on the earlier recorded evidence does not prevent the petitioner/defendant from conducting cross-examination on the witnesses on Issue No. 3-A, which was framed later on. The learned Courts below have misconstrued law on the subject and have failed to exercise vested jurisdiction in accordance with law while passing the impugned orders. As after framing of Issue No. 3-A new horizon had opened for the parties, therefore, the learned trial Court ought to have allowed the application for cross-examination on the witnesses of Respondent No. 1/plaintiff only to the extent of Issue No. 3-A instead of declining the application filed by the petitioner because the petitioner/defendant cannot be deprived of his vested right in this regard. Reliance in this

regard is placed on Saleem Jan alias Salman Khan v. Abdul Manan and 2 others (2009 MLD 1127).

6. For the foregoing reasons, the instant constitutional petition is allowed, impugned orders are set aside, consequent whereof application moved by the petitioner/defendant for cross-examination on the witnesses produced by the Respondent No. 1 /plaintiff only to the extent of Issue No. 3-A will be deemed to be accepted.

(Y.A.)  Petition allowed