Find a Lawyer

‑‑‑S. 115‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art. 164‑‑'Case decided'‑‑Order admitting or declining to admit evidence oral or documentary does not amount to a "case decided" within purview of S.115, C.P.C.‑‑High Court, held, could not interfere with the order of the Trial Court in exercise off its revisional jurisdiction.‑‑[Words and phrases].

Nawabzada Malik Habibullah Khan v. The Pak. Cement Industries Limited and others 1969 S C M R 965 ref.

‑‑‑0. XVII, R.1(3) (Lahore Amendment)‑‑Grant of adjournment‑ Discretion of Trial Court which is always exercised .with care keeping in view all the circumstances‑‑Such discretion has to be .judicious and not arbitrary‑‑Prayer of plaintiff for adjournment, after concluding the affirmative, evidence on the additional issue for time to get the statement of one of the plaintiffs recorded coupled with an application that plaintiff's revision petition was pending in the High Court, held, required dispassionate consideration with a view to seeing whether the discretion of the High Court for quick disposal of the case would better be carried out by an .adjournment or otherwise‑‑Trial Court not acting with full comprehension of all the facts of the case and appearing to be prone to rush through the case‑‑Quick disposal was one thing but it was subordinate to arriving at a just decision‑‑Just decision without allowing a single opportunity to plaintiff to have his say was hardly likely to come about‑‑Order of Trial Court was set aside and Trial Court was directed to allow, as prayed, to the plaintiff an opportunity to get his statement recorded.

Ch. Abdul Sattar Goraya for Petitioners.

Ch. Qadir Bakhsh for Respondents.

Date of hearing: 20th June, 1987.

This order will dispose of Civil Revisions Nos. 53 of 1985 and 86 of 1985 as these are connected matters.

2. According to the petitioners' learned counsel, an agreement was entered into by the respondent No.l and his wife, respondent No.2 with the petitioners for sale of land measuring 805 Kanals 7 Marlas situated in Mauza Karim Wah, Tehsil and District Vehari for a sum of Rs.17,75,000 on 29‑3‑1980. The same day the petitioners paid a sum of Rs.2,95,000 in cash and Rs.80,000 through a bank draft, all told Rs.3,75,000. Acdording to the agreement, the petitioners were to pay a sum of Rs.2,00,000 before 2‑7‑1980 and the balance of Rs.12,00,000 by 31‑1‑1981.

3. Petitioners filed a suit for specific performance on 4‑9‑1980. Following issues were framed on 21‑1‑1982:‑

"(1) Whether the plaint does not disclose cause of action, and is liable to be rejected OPD.

(2) Whether the suit is bad for misjoinder of necessary parties OPD.

(3) Whether the agreement to sell is violative to provisions of Martial Law Regulation, 1972 OPD.

(4) Whether the suit is not maintainable in its present form OPD.

(5) Whether the plaintiffs are entitled to decree for specific performance of contract as prayed for OPP.

(6) Relief."

The petitioner‑plaintiffs examined four witnesses including. the petitioner No.1 Mian Zafar Iqbal himself. He wanted to produce a cassette regarding the talk between him and the defendant‑respondent No.1 and another. This was not received in evidence by the learned trial Court. Affirmative evidence of the plaintiffs was closed and they reserved the right of rebuttal. This happened on 20‑1‑1980. On 10‑2‑1983 defendants examined their two witnesses. The case was adjourned for the rebuttal evidence of the plaintiff‑petitioners to 10‑3‑1983. On this date viz. 10‑3‑1983, the petitioners filed an application for production of additional evidence to produce the tape‑recorded conversation between the petitioner No. l and respondent No.l and another. This application, after reply, was dismissed on 17‑4‑1983. The petitioners filed a revision petition bearing C . R . No. 286 of 1983 which was dismissed by a learned Single Judge vide order dated 22‑11‑1983. The petitioners filed a Civil Petition for Special Leave to Appeal challenging the last‑mentioned order, bearing No.5 of 1984 on 2‑1‑1984. On 29‑9‑1984 the petitioners filed an application for framing of additional issue. This was allowed on 13‑10‑1984 and the following additional issue No.4‑A was framed:‑

"Whether the plaintiffs have performed their part of contract by tendering a sum of Rs.2,00,000 to the defendants before 2‑7‑1980 which was, however, finally refused by the defendants and are ready to perform the other part of their contract "

On 8‑1‑1985 the petitioner‑plaintiffs' evidence on the additional issue aforequoted was recorded and when P.W.5 Naeemullah after having made his statement, said that what he had deposed to was recorded on a tape, it was objected to that the tape recorded conversation could not be led in evidence because that had already been disallowed. The petitioners then filed an application under Article 164 of Qanun‑e .Shahadat, 1984 for producing the cassette. This application was rejected by the learned trial Court on 17‑1‑1985. When the case was taken up by the learned trial Court on 31‑1‑1985, statements of P.W.6 Rafiq Ahmad and P.W.3 Mukhtar Ahmad Malik were recorded. Learned counsel appearing for the petitioner‑plaintiffs stated that he would close the affirmative evidence except that time may be allowed for recording the statement of one of the plaintiffs as none was present. The request was declined. The case was adjourned for the evidence of the defendant‑respondents. This is vide order dated 31‑1‑1985. The application for producing the cassette was rejected as noted above by the learned trial Court on 17‑1‑1985. This order was challenged through Civil Revision No. 53 of 1985 filed on 29‑1‑1985. It may be noted here that Civil Petition for Special Leave to Appeal No.5 of 1984 against the earlier dismissal of the petitioners' Civil Revision No. 286 of 1983 on 22‑11‑1983 disallowing production of the cassette was dismissed by the learned Supreme Court of Pakistan on 27‑2‑1985. Against the order refusing adjournment for recording statement of one .of the plaintiffs by the learned trial Court vide order dated 31‑1‑1985, the plaintiff‑petitioners have filed Civil Revision No. 86 of 1985 on 16‑2‑1985.

4. Civil Revision No. 53 of 1985 is against the rejection of the petitioner‑plaintiffs' application for producing the cassettee filed under Article 164 of Qanun‑e‑Shahadat, 1984, which according to the learned counsel for the petitioners had come into force on 26‑10‑1984 by the learned trial Court vide order dated 17‑1‑1985. The learned counsel for the. petitioners has vehemently contended that the learned trial Court was in error to have dismissed the application on the ground that the petitioner‑plaintiffs had not disclosed in their application the fact that an earlier application for production of the cassettee had been rejected. It was contended that in the context of the evidence being recorded on 8‑1‑1985 when it was objected to that the evidence about the . cassette could not be led because such application had earlier been rejected, the application was made then and there the same day. Therefore, the learned Court was aware of the controversy and there was no intentional suppression of the previous application and its fate. It was next contended that after the framing of the additional issue on 13‑10‑1984, the petitioner‑plaintiffs were entitled to lead evidence in support of the additional issue and the cassette was a material piece of evidence. The additional issue was framed on 13‑10‑1984 and application dated 8‑1‑1985 was, by no means, belated.

5. The contention of the learned counsel for the defendant respondents is that the petitioners had wanted to produce this very cassette at an earlier stage of the litigation and their application for the purpose was rejected by the learned trial Court as well as by the High Court and the learned Supreme Court of Pakistan also dismissed their Civil Petition for Special Leave to Appeal. Now they cannot hope to produce the same. He has also submitted that against the order of the learned trial Court declining to admit evidence vide the impugned order dated 17‑1‑1985, the revision petition is not competent. He placed reliance on Nawabzada Malik Habibullah khan v. The Pak. Cement Industries Limited and others 1969 S C M R 965 and he read the penultimate paragraph of the judgment to the following effect:‑

"An order admitting or declining to admit evidence oral or documentary does not amount to a 'case decided' within the A purview of section 115, C.P.C. The High Court could not, therefore, interfere with the order of the trial Court in exercise of its revisional jurisdiction."

6. After hearing the learned counsel for the parties it appears quite clearly that this petition (C.R. No.53 of 1985) cannot proceed. All efforts of the petitioners to produce the cassette had failed when their application for the production thereof was rejected by the learned trial Court on 17‑1‑1985. Their revision petition bearing C.R. No.286 of 1983 was dismissed by the High Court on 22‑11‑1983 and thereafter their Civil Petition Special Leave to Appeal No. 5 of 1984 was dismissed by the learned Supreme Court of Pakistan on 27‑2‑1985. The same purpose cannot be attained subsequently by getting an additional issue framed. All pleas including that based on Article 164 of Qanun‑e -Shahadat, 1984 had to be taken earlier as the law had already come into force. The forensic assault with Herculean efforts launched by the learned counsel for the petitioners cannot now displace the Himaliyan existence. What has been refused by the highest Court, cannot be permitted. It can have the effect of rendering the order of the highest Court ineffective. This, of course, is not permissible. The reliance of the learned counsel for the respondents that against the order of refusal to admit additional evidence by the trial Court revision petition is incompetent in view of Nawabzada Malik Habibullah Khan v. The Pak. Cement Industries Limited and others 1969 SCMR 965, is quite apt as well.

7. For the foregoing reasons, the revision petition bearing C.R.IB No.53 of 1985 is dismissed with costs.

CIVIL REVISION NO. 86 OF 1985. '

8. Taking up the second revision petition bearing C.R.No.86 of 1985, it is to be noticed that the petitioner‑plaintiffs had led their affirmative evidence on 31‑1‑1985 in support of issue No.4‑A. After concluding the affirmative evidence, a request was made that an opportunity may be granted for recording the statement of one of the plaintiffs. An application to that effect was also made the same day wherein it was stated that the principal plaintiff, Mian Zafar Iqbal was awfully busy in election .and that the plaintiffs had filed C.R.No.53 of 1985 challenging the order of the learned trial Court dated 17‑1‑1985 by which their application for production of the cassette was rejected. The revision petition was fixed for 17‑2‑1985 and it was stated that "the judicial propriety and the interest of justice demands that the hearing of the suit may be postponed for some actual date after 28‑2‑1985, otherwise it would amount to pre‑empt the decision of the Honourable High Court to be made on revision petition of the applicants." The request was declined. Hence, the revision petition.

9. Learned counsel for the petitioner‑plaintiffs has vehemently contended that in the circumstances the petitioners should have been allowed to get the statement of one of the petitioners recorded. Learned counsel for the respondent, on the other hand, contended that order XVII Rule 1 vide sub‑rule (3) (Lahore amendment) C.P.C. provides that where sufficient cause is not shown for grant of an adjournment the Court shall proceed with the suit forthwith. It was submitted that no sufficient cause having been shown to the satisfaction of the learned trial Court, it was within the discretion of the learned trial Court to have rejected the application for adjournment. Its order is not interferable.

10. There is no doubt that it is within the discretion of a learned trial Court to grant adjournment or not. But the discretion is always exercised with care keeping in view all the circumstances. Discretion is judicious and not arbitrary. In the circumstances of this case, the prayer of the counsel for the petitioner‑plaintiffs for adjournment, after concluding the affirmative evidence on the additional issue No.4‑A, for time to get the statement of one of the petitioners recorded coupled with an application that the petitioners' revision petition against an interim order of the learned trial Court was pending in the High Court, required a dispassionate consideration, with a view also to seeing whether the direction of the High Court for quick disposal of the case will better be carried out by an adjournment or otherwise. The learned trial Court has not acted with full comprehension of all the facts of the case and appears to be prone to rush through the case. Quick disposal is one thing. But it is subordinate to arriving at a just decision. Just decision without allowing a single opportunity to a plaintiff to have his say is hardly likely to come about.

10. In view of what has been stated above, the order of the learned trial Court dated 31‑1‑1985 is set aside and it is directed that the learned trial Court shall allow, as prayed, to the plaintiff petitioner No.l an opportunity to get his statement recorded. To avoid delay, the parties are directed to appear before the learned trial Court on 9‑7‑1987 for further proceedings. The petition is thus allowed. In the circumstances, the parties are left to bear their own costs., .

M. B. A./ Z‑31/L Petition 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.