--O.VII R. 3--Right of defence was struck off--Disobedience and indifferent dimenour--Challenge to--Suit for recovery-- The petitioner was granted with absolute last....

 PLJ 2024 Lahore (Note) 4
Present: Shahid Bilal HAssan, J.
NASRULLAH KHAN BHALLI--Petitioner
versus
MUHAMMAD NAWAZ--Respondent
C.R. No. 42853 of 2023, decided on 2.8.2023.

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

----O.VII R. 3--Right of defence was struck off--Disobedience and indifferent dimenour--Challenge to--Suit for recovery-- The petitioner was granted with absolute last opportunities many a time with warning as well as costs but even then he did not pay any heed to orders--How petitioner pursued his case and showed his disobedience and indifferent demeanour towards orders of Court; such like indolent person cannot seek favour of law, because law favours vigilant and not indolent--When impugned order has been passed with jurisdiction and is well within parameters of law, same cannot be interfered with--Petition dismissed.                                

                                                                           [Para 3 & 4] A, B & C

2015 SCMR 1401 and 2020 SCMR 300 ref.

Mr. Muhammad Mushtaq Ahmed Dhoon, Advocate for Petitioner.

Date of hearing: 2.8.2023.

Order

C.M. No. 3 of 2023 and Main case

Precisely, the respondent/plaintiff instituted a suit for recovery of amount under Order XXXVII, Rules 1 and 2, Code of Civil Procedure, 1908, against the present petitioner. The petitioner after seeking leave to appear and defend the suit, contested the suit. Issues were framed and evidence of the respondent/plaintiff was recorded. The petitioner examined D.W.1 on 18.11.2022 and D.W.2 on 24.05.2023, however, cross examination upon the said D.Ws. was reserved, but despite availing of many opportunities including last and final one with costs and with specific warnings, the petitioner neither appeared before the learned trial Court to face the cross examination nor produced D.W.2, therefore, the learned trial Court vide impugned order dated 13.06.2023 discarded/brushed aside the examination in chiefs of D.W.1 and D.W.2 and struck off right of petitioner/defendant to produce his evidence; hence, the instant revision petition.

2. Heard.

3. Considering the arguments and perusing the record, made available, as well as going through the impugned order passed by the learned trial Court, it becomes diaphanous that on different dates the petitioner/defendant was directed to produce his witnesses for facing the cross examination as the examination in chief of D.W.1 was recorded on 18.11.2022, however, despite affording many opportunities he failed to either appear himself before the learned trial Court or produce his remaining evidence. The petitioner was granted with absolute last opportunities many a time with warning as well as costs but even then he did not pay any heed to the orders and direction of the learned trial Court, which shows his adamant attitude towards the orders of the Court. Again by playing a trick, he examined D.W.2 on 24.05.2023 but again the petitioner failed to produce his D.Ws. for facing the cross-examination. The above picture of affairs makes it crystal clear that how the petitioner pursued his case and showed his disobedience and indifferent demeanour towards the orders of the Court; thus, such like indolent person 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:

‘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 party 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 lis 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 Mouga) then (Qatai Akhri Mouga) 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.”

4. In view of the above discussion and observations, when the impugned order has been passed with jurisdiction and is well within the parameters of law, the same cannot be interfered with at this stage; resultantly, the revision petition in hand comes to naught and stands dismissed in limine.

5. As the main petition has been decided, therefore, the C.M.No. 3 of 2023, having become infructuous, stands disposed of.

(Y.A.)  Petition dismissed