2022 M L D 516
[Balochistan]
Before Rozi Khan Barrech, J
BAZ MUHAMMAD KAKAR --- Petitioner
Versus
Syed ABDUL RASHEED and another ---Respondents
Civil Revision No.409 of 2020, decided on 10th September, 2021.
Civil Procedure Code (V of 1908) ---
----O.XVII, R.3 ---Trial Court closed petitioner's right to produce evidence ---Appellate Court
remanded the case with costs ---Petitioner, having contumacious conduct, failed to comply
with the directions of appellate Court, thus his suit was dismissed by Tr ial Court ---Held, that
petitioner was awarded several opportunities as per the direction of High Court, but he once
again failed to comply with the said direction ---Petitioner did not show his seriousness and
delayed the matter, and also did not appear bef ore High Court after filing present petition---
Law had provided a mechanism which was to be followed and either party had to suffer the consequences in case of non -compliance thereof ---Petitioner's conduct did not warrant any
concession, and his conduct de nied him the right to claim equity when he had not come to
the equitable court with clean hands ---No illegality/perversity in the impugned judgments
had been pointed out ---Revision petition was dismissed accordingly.
Moon Enterpriser CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited
through General Manager, Rawalpindi and another 2020 SCMR 300 rel.
Khalil Ahmed Panezai for Petitioner (Absent).
None present for Respondents.
Date of hearing: 8th September, 2021.
JUDGMENT
ROZI KHAN BARRECH, J .----Through this Civil Revision Petition, the petitioner
has called in question the judgment and decree dated 01.09.2020 (hereinafter "the impugned Judgment") passed by learned Additional District Judge -I, Quetta, (hereinafter "the appellate
court") whereb y by dismissing the appeal filed by the petitioner under -section 96, C.P.C., the
said court maintained the judgment dated 23.04.2016 (hereinafter "the impugned Judgment") passed by the learned Senior Civil Judge -III, Quetta, (hereinafter "the trial court") through
which suit filed by the petitioner for declaration, specific performance and permanent
injunction was dismissed under Order XVII, Rule 3 of the C.P.C. for non- production of
evidence.
2. Briefly stated, the facts of the case are that the petitioner instituted a suit for
declaration, specific performance and permanent injunction against the respondents before
the learned trial court. The suit was contested by the respondents by filing written statements. The learned trial court framed necessary issues and fixed the case for recording evidence of the petitioner. The suit was dismissed in non- interest, against which an appeal was filed
before this court which was allowed, and the matter was remanded back to the trial court on 06.11.2015. After remand of the case, the petitioner did not comply order of this court and
however, due to non- production of the witnesses, the right to produce evidence of the
petitioner was closed, and the suit was dismissed for want of evidence by the learned trial court vide im pugned judgment and decree dated 23.04.2016. The petitioner aggrieved of this
decision assailed the same in appeal. The learned appellate court, while agreeing with the findings recorded by the learned trial court, dismissed the appeal through the judgment and
decree dated 01.09.2020, whereafter the instant revision petition under section 115, C.P.C. was filed.
3. Despite repeated calls, none has appeared on behalf of the petitioner. The matter was
fixed for katcha peshi, and the said petition was filed on 18.11.2020. The counsel for the petitioner did not appear before this court. On 01.09.2021 the last opportunity was afforded to the learned counsel for the petitioner, but despite that, after repeated calls, the learned counsel for the petitioner did not a ppear before this court. In such circumstances, I have left
with no other option but to decide the matter on the basis of material available on record.
4. The sole question which is to be examined and decided in the said petition is as to
whether the case of the petitioner squarely falls within me purview and mischief of Order
XVII, Rule 3, C.P.C.
A perusal of the record of the case reflects that the petitioner filed the suit before the
learned trial court in the year 2012, wherein the learned trial court framed the issues on
21.08.2013. The petitioner initially produced three witnesses in his support, and thereafter, the petitioner, despite availing of fifteen opportunities, failed to produce further witnesses, thereafter, the suit filed by the petitioner was dismissed on 23.10.2014 by closing his right to
produce his evidence under Order XVII, Rule 3, C.P.C.
5. The petitioner, being dissatisfied with the order dated 23.10.2014, filed a revision
petition before this court and the same was accepted on 06.11.2015 with the following directions: -
"a) Before initiating further proceeding the petitioner shall affix the requisite court fee on the memo of plaintiff on or before 30th November, 2015.
b) The petitioner shall pay the cost of Rs.25,000/ - to respondent No.1 before examining
any witness.
c) Either way, the petitioner shall lead and complete his evidence by or before 31st March, 2016.
Thereafter, the respondent shall lead their respective evidence in due course on their
turn. In case the petitioner fa ils to fulfill any of the aforesaid direction, the suit shall
be dismissed forthwith".
6. After remanding of the case, the petitioner was awarded several opportunities as per
the direction of this court. Whereas the petitioner once again failed to make the compliance
with the said direction and the suit filed by the petitioner was dismissed by the learned trial court on 23.04.2016. The learned trial court, because of contumacious conduct of the petitioner has left no other option but to close his right to produce evidence; in the circumstances, mischief of Order XVII, Rule 3, C.P.C. was squarely attracted.
7. Another aspect of the matter is also to be taken into consideration that the conduct of
the petitioner as he neither, before the trial court showed his seriousness and delayed the
matter on the pretext or the other and also not appeared before this court, despite that such petition was filed on 18.11.2020, and the matter was fixed for katcha peshi from the insertion of the said petition, neither the peti tioner nor his counsel was appearing before this court. On
01.09.2019 the last opportunity was afforded to the learned counsel for the petitioner but despite that, he did not appear before this court. It is well settled maxim that delay of justice is a den ial of justice; therefore, to ensure the compliance of orders of the court for the
expeditious decisions of the matters, law provides a mechanism which is to be followed, and either party has to suffer the consequences in case of non- compliance thereof. Such conduct,
in my humble view, do not warrant any concession, nor a lenient view can be taken of these circumstances in the light of the dictum laid down by the Hon'ble Supreme Court in the case titled as Syed Tahir Hussain Mehmoodi v. Agha Syed Liaquat Al i and the case titled as Rana
Tanveer Khan v. Naseeruddin and others.
8. In view of the above settled principle of law, the conduct of the petitioner before the
trial court wherein he, despite repeated orders was unable to record the testimony of his witnesses, unable to comply with the order of this court, delayed the proceeding on one
pretext or the other. Similarly, he delayed the proceedings in revisional court, which is not a positive attribute of the petitioner manifested by his conduct in approachin g the equitable
jurisdiction of this court. Thus, his conduct surely denies him the right to claim equity when he has not come to the equitable court with clean hands.
9. The august Supreme Court of Pakistan in the case titled Moon Enterpriser CNG
Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager
Rawalpindi and another 2020 SCMR 300 dealing with the similar question of law pertaining to the application of Order XVII, Rule 3, C.P.C., has unequivocal terms, held that;
"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 the 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 honour 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 pro duce 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."
10. The petitioner has failed to establish that his conduct was not contumacious and he
had been diligently pursuing the matter as witnesses of the petitioner were never available in
the court despite last and f inal opportunity having been provided on several occasions;
therefore, courts below were justified to pass the aforesaid judgment's under Order XVII,
Rule 3, C.P.C. and rightly concurrently dismissed the suit. No illegality or perversity in the aforesaid j udgments have been pointed out, whereby the impugned judgments could be set
aside on the ground of suffering with some jurisdictional defect, consequently, there is no reason to interfere in the same.
For what has been discussed above, this Civil Revision Petition being devoid of any
force, stands dismissed in limine.
ZH/157/Bal. Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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