Find a Lawyer

‑‑ Art. 133 (2)‑Cross‑examination‑Object of‑Object of cross examination is two‑fold i. e. to bring out desirable facts of case modifying examination‑in‑chief or establishing cross‑examiner's own case and to impeach credit of witness‑Cross‑examination would help in discovery of truth‑It would be necessary to admissibility of oral evidence that opportunity to cross‑examine the witness be given.‑[Cross‑examination].

(b) Civil Procedure Code (V of 1908)‑

‑‑ S. 115‑Qanun‑e‑Shabadat Order (10 of 1984), Art. 133 (b)‑Revisional jurisdiction, exercise of‑Where despite opportunity to cross‑examine witness, having been granted, party not availing of such opportunity and making it impossible for Court to proceed further. such Court, held. would be justified in closing/stopping cross‑examination‑However, difficulties of counsel who have to appear in more than one cases in different Courts on same day have to be keep in view by Courts‑Order of closing of cross‑examination was set aside by High Court in revisional jurisdiction and defendant were allowed to cross‑examine plaintiff subject to payment of specified amount as costs.

Mirza Manzoor Ahmed for Petitioners,

Malik Muhammad Afzal for Respondents.

Date of hearing : 20th May, 1985.

I propose to dispose of Civil Revision No. 158 of 1985 and Civil Revision No. 159 of 1985 arising out of more or less identical facts and which involve common questions of fact and law.

2. Facts in Civil Revision No. 158 of 1985 which arises out of Civil Suit No. 134 of 1977 are that Zulfiqar Ali and two others brought a suit for pre‑emption in respect of land measuring 104 Kanals 18 Marlas sold to Qasim Ali and others, vide Registered Sale Deed, dated 11‑3‑1976. In Civil Suit No. 133 of 1977 which gave rise to Civil Revision No. 159 of 1985, the same quantity of land was purchased by Qasim Ali and Rehmat Ullah and a suit for pre‑emption was brought by Muhammad Anwar Kausar and another. Both the suits were resisted by the vendees and necessary issues arising out of the pleadings of the parties were framed by the trial Judge. The suits were then adjourned for evidence. Plaintiff's statement was recorded on 1‑10‑1983. Counsel for the defendant was not present because of a bereavement in his family. Cross‑examination, therefore, was reserved and postponed to 11‑10‑1983. Since the counsel failed to enter appearance on the adjourned date also, the Court proceeded to close cross‑examination. An application for review was made which too was dismissed. The matter was agitated in revisional jurisdiction before the learned District Judge, Sahiwal. It was held that the revision petition because of the assessed jurisdictional value, was not competent before the aforesaid Court. Petitions in revision, therefore, were returned to the petitioners for their presentation before the proper Court/forum. Hence the present petitions in revisional jurisdiction of this Court.

Learned counsel have been heard. It was contended that cross -examination was a very valuable right of which the petitioners have been deprived in this case on insufficient grounds. It was argued that on 11‑10‑1983, the principal counsel was busy before another Court and that it was because of his professional pre‑occupation, he could not attend the Court for cross‑examining the plaintiff. Affidavit of Mr. Hamid Asghar, Advocate was relied upon to show that the absence was uninten tional. Learned counsel for the respondents contended that though the right was valuable. yet the vendees in the result of their own negligence had disentitled themselves to the exercise of such a right It was submitted that the proceedings in the two suits were being delayed by the defendants on one pretext or the other. 1t was also urged that the vendees had engaged the services of three Advocates and in case one was absent, the other two should have conducted the cross‑examination. In this view of the matter, it was urged that the absence was rightly taken notice of by the trial judge and finding the conduct of the vendees contumacious, the Court acting in proper exercise of its jurisdiction closed their right of cross‑examination. On the date fixed when the plaintiff's statement was recorded, the counsel because of bereavement in his family did not attend the Court. Absence, therefore, was unavailable and the Court rightly adjourned the suits to 11‑10‑1983 for cross‑examination. On this date, the counsel was stated to be busy in the Court of Additional District Judge and was not available at the time of the call. Counsel has sworn an affidavit to support an explanation given for his inability to attend the Court. Counsel's absence, therefore, was not intentional. It is correct that the vendees had more than one counsel to conduct cases on their behalf but then they may have liked the cross‑examination to Mr. Asghar Hamid, Advocate. Main object of cross‑examination is two fold: (i) to bring out desirable facts of the case modifying the examination in‑chief or establishing the cross‑examiner's own case, and (ii) to impeach the credit of the witness. Cross‑examination helps in discovery of truth and therefore, it was necessary to the admissibility of oral evidence that opportunity to cross‑examine the deponent should be given. While making these observations, I am not unmindful of a situation where despite opportunity having been granted, the party does not avail of the opportunity and by its own conduct makes it impossible for the Court to proceed further. If that be the situation, the Court would be justified in closing stopping cross‑examination. However, the facts here do not show that the defendants had refused to avail of the opportunity offered or that they had by their own conduct made it impossible for the Court to proceed further except in the manner that it did. Difficulties of the counsel who have to appear in more than one cases in different Courts on the same day and may be at one time have to be kept in view by the Courts. Absence of cross‑examination shall certainly prejudice the rights of the defendants. Therefore, taking stock of the entire set of circum stances, I have decided to interfere. Impugned orders, dated I I‑10‑1983 and 14‑3‑1984 are set aside and the defendants are allowed to cross- examine the plaintiff. However, exercise of right of cross‑examination is subject to payment of Rs. 500 in each case. Parties are directed to appear on 30‑5‑1985 before the trial Court.

A. A. Revision allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.