-Suit for specific performance--Closing of right to producing evidence--How petitioner pursued his case and shows his disobedience toward orders of Court; thus, such like indolent persons cannot seek favour of law, because law favours vigilant and not indolent-

 PLJ 2022 Lahore 525

Civil Procedure Code, 1908 (V of 1908)--

----O.XVII R. 3--Specific Relief Act, (I of 1877), S. 12--Suit for specific performance--Closing of right to producing evidence--Petitioner was failed to produce evidence--Dismissal of suit--Appeal--Dismissed--Leniency show by trial Court regarding producing of evidence--Disobedience of orders of Court--A leniency shown by trial Court instead of complying with clear-cut direction and order, neither he appeared himself in witness box nor produced his evidence--How petitioner pursued his case and shows his disobedience toward orders of Court; thus, such like indolent persons cannot seek favour of law, because law favours vigilant and not indolent--Civil revision was dismissed.       [Pp. 526 & 527] A & B

2015 SCMR 1401 and 2020 SCMR 300 ref.

Nemo for Petitioner.

Mr. Abdul Rauf and Mr. Muhammad Javed Hanif, Advocates for Respondents.

Date of hearing: 24.9.2021.

 PLJ 2022 Lahore 525
Present: Shahid Bilal Hassan, J.
MUHAMMAD YOUSAF KHAN--Petitioner
versus
GHULAM AHMED, etc.--Respondents
C.R. No. 3077 of 2011, decided on 24.9.2021.

Order

Despite reflection of name of the learned counsel for the petitioner in the cause list, none has entered appearance on his behalf; thus, the instant petition being old one is going to be decided after hearing learned counsel for the respondents and going through the available record.

2. Precisely, the petitioner instituted a suit for specific performance of agreement to sell against the respondents/defendants, which was contested by the respondents/defendants. Issues were framed and case was adjourned for evidence of the petitioner but the petitioner despite availing numerous opportunities failed to produce his witnesses for facing the cross-examination, thus, the learned trial Court vide impugned order dated 07.04.2010 closed his right to produce evidence by invoking powers under Order XVII, Rule 3 of the Code of Civil Procedure Code 1908 and vide even dated judgment and decree dismissed the suit for want of evidence. The petitioner being aggrieved preferred an appeal but the same was also dismissed vide impugned judgment and decree dated 13.07.2011; hence, the instant civil revision.

3. Heard.

4. Considering the arguments and perusing the record, made available, as well as going through the impugned order, judgments and decrees passed by the learned Courts below, it becomes diaphanous that the suit under discussion was instituted on 05.01.2006 and issues were framed. After that, on different dates the petitioner/plaintiff was directed to produce his evidence, he got examined P.W.1 to P.W.5 but despite availing of many opportunities he failed to produce his witnesses for the purpose of cross-examination. On 17.03.2010, the petitioner was granted, one last opportunity for production of his complete evidence with a warning that if he failed to avail the same his right to lead evidence will be closed; however, on the date fixed neither the petitioner nor his witnesses nor his counsel appeared, which shows that he paid a deaf car to such a vivid direction. Despite such a leniency shown by the learned trial Court instead of complying with the clear-cut direction and order, neither he appeared himself in the witness box nor produced his evidence, Which shows his unyielding and adamant attitude towards the orders of the Court. The above picture of affairs makes it lurid that how the petitioner pursued his case and shows his disobedience toward the orders of the Court; thus, such like indolent persons cannot seek favour of law, because law favours the vigilant and not the indolent. In this regard reliance is placed on Rana Tanveer Khan v; Naseer-ud-Din and others (2015 SCMR 1401), wherein it has been unequivocally held:

'...... it is clear from the record that the petitioner had availed four opportunities to produce his evidence and in two of such dates (the last in the chain) he was cautioned that such opportunities granted to him at his request shall be that last one, but still on the day when his evidence was closed in terms of Order XVII, Rule 3, C.P.C. no reasonable ground was propounded for the purposes of failure to adduce the evidence and justification for further opportunity, therefore, notwithstanding that these opportunities granted to the petitioner were squarely fell within the mischief of the provisions ibid and his evidence was rightly closed by the trial Court. As far as the argument that at least his statement should have been recorded, suffice it to say that the eventuality in which it should be done has been elaborated in the latest verdict of this Court (2014 SCMR 637). From the record it does not transpire if the petitioner was present on the day when his evidence was closed and/or he asked the Court to be examined; this has never been the case of the petitioner throughout the proceedings of his case at any stage; as there is no ground set out in the first memo. of appeal or in the revision petition.'

It was further held that:-

'2. ... Be that as it may, once the case is fixed by the Court for recording the evidence of the party, it is the direction of the Court to do the needful, and the party has the obligation to adduce evidence without there being any fresh direction by the Court, however, where the party makes a request for adjourning the matter to a further date(s) for the purpose of adducing evidence and if it fails to do so, for such date(s), the provisions of Order XVII, Rule 3, C.P.C. can attract, especially in the circumstances when adequate opportunities on the request of the party has been availed and caution is also issued on one of such a date(s), as being the last opportunity(ies).'

While affirming the above said view, the Apex Court of country in a judgment reported as Moon Enterpriser CNG Station. Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another (2020 SCMR 300) has invariably and vividly further held that:

4……..It is unfortunate that the prevailing pattern in the conduct of litigation in the Lower Courts of Pakistan is heavily permeated with adjournments which stretch, what would otherwise be a quick trial, into a lengthy, expensive time-consuming and frustrating process both for the litigant and the judicial system. While some adjournments are the consequences of force majeure, most are not. To cater for the later and to discourage misuse, the C.P.C. through Order XVII, Rule 3 has provided the Court with a curse of action that checks such abuse. '

In the said judgment, it was further held:

'6. A bare reading of Order XVII, Rule 3, C.P. C. and case law cited above clearly shows that for Order XVII, Rule 3, C.P.C. to apply and the right of a parly to produce evidence to be closed, the following conditions must have been met:-

i.        at the request of a party to the suit for the purpose of adducing evidence, time must have been granted with a specific warning that such opportunity will be the last and failure to adduce evidence would lead to closure of the right to produce evidence; and

ii.       the same party on the date which was fixed as last opportunity fails to produce its evidence.

In our view it is important for the purpose of maintaining the confidence of the litigants in the Court systems and the presiding officers that where last opportunity to produce evidence is granted and the party has been warned of consequences, the Court must enforce its order unfailingly and unscrupulously without exception. Such order would in our opinion not only put the system back on track and reaffirm the majesty of the law but also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reason. Where the Court has passed an order granting the last opportunity, it has not only passed a judicial order but also made a promise to the parties to the is that no further adjournments will be granted for any reason. The Court must

enforce its order and honor its promise. There is absolutely no room or choice to do anything else. The order to close the right to produce evidence must automatically follow failure to produce evidence despite last opportunity coupled with a warning. The trend of granting (Akhri Mouqa) then (Qatai Akhri Mouqa) and then (Qatai Qatai Akhri-Mouqa) make a mockery of the provisions of law and those responsible to interpret and implement it. Such practices must be discontinued, forthwith.'

5. In view of the above discussion and observations as well as by placing reliance on the judgments supra, the civil revision in hand comes to naught and stands dismissed. No order as to the costs.

(Y.A.)  Revision dismissed