Syed TAHIR HUSSAIN

MEHMOODI VS Agha Syed

LIAQAT ALI
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 2014 S C M R 637

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Amir Hani Muslim, JJ

Syed TAHIR HUSSAIN MEHMOODI and others---Petitioners

Versus

Agha Syed LIAQAT ALI and others---Respondents

Civil Petitions Nos. 24-Q and 22-Q of 2014, decided on 10/02/2014.

(Against the judgment dated 26-12-2013 of the High Court of Balochistan, Quetta passed in C.R. No.354 of 2012.)

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

----O. XVII, R. 3---Closure of defendant's evidence for failing to produce evidence---Court allowing defendant to record his
statement after closure of his evidence---Scope---Plaintiff adduced and completed his evidence, while the evidence of
defendants was closed in terms of O. XVII, R.3, C.P.C. as they availed considerable opportunities but failed to adduce
evidence---High Court in its revisional jurisdiction allowed defendants to adduce evidence but only to the extent of recording
their own statements---Validity---High Court gave defendants an opportunity of appearance/examination as their own witness
(or through attorney), after seemingly considering the fact that as the defendants were not marked absent in the order sheet of
the Trial Court on the date when O. XVII, R.3, C.P.C. was applied, therefore some margin should be given to them and it should
be assumed that they were present---Such approach adopted by the High Court could possibly be a valid approach in the facts
of the present case---Probability of the defendants' presence and they offering themselves to be examined as witnesses could
not be ruled out from the material available on the record, and the view thus formed by the High Court could not be held to be
absolutely illegal and unfounded---Petition was dismissed accordingly.

Muhammad Aslam v. Nazir Ahmed 2008 SCMR 942 ref.

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

----O. XVII, R. 3---Court may proceed notwithstanding either party fails to produce evidence---Scope---Provisions of O.XVII, R.
3, C.P.C. were penal in nature and should be strictly construed and applied---Once the case of a delinquent litigant squarely fell
within the purview and mischief of O.XVII, R. 3, C.P.C. then neither any concession should be shown to such litigant nor a
lenient view favouring him shouldberesortedto;thisshouldnot evenbepermissiblydone onthetouchstone
ofexerciseofdiscretionarypower ofthe court and/or on the approach that technicalities of procedure should not be allowed to
impede the interest of justice, and/or that the litigants should not be knocked out on technical grounds, and that adversarial lis
should be settled on merits---If such an approach was liberally followed and resorted to there would be no discipline in the
adjudication of civil litigation and the delinquent whose case though was squarely hit and covered by the penal provisions of
O.XVII, R. 3, C.P.C would be given a chance to his advantage and to the disadvantage of his opposing side---Where O.XVII, R.
3, C.P.C. was duly attracted, the court had no option except to take action in accord therewith.

(c) Constitution of Pakistan---

----Art.4---Right of individual to be dealt with in accordance with law---Court, duty of---Scope---To apply and to adhere to law
was not a mere technicality, rather it was a duty cast upon the court as per Art.4 of the Constitution.

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

----O. XVII, R. 3---Closure of defendant's evidence for failing to produce evidence---Discretion of court to allow defendant to
record his statement after closure of his evidence---Scope and procedure---In every case where action against a delinquent
party was imperative and his evidence had to be closed because the case squarely and eminently fell within the mischief of
O.XVII, R. 3, C.P.C., the court while closing the evidence was not in any manner obliged to adjourn the case and require or ask
the litigant to appear and examine himself as a witness on a subsequent date---Obviously if the party was present in court and
desired to appear as a witness, the court should not decline his request, rather it shall be appropriate that where the party was
present, the court while applying O.XVII, R. 3, C.P.C. and closing the evidence on a given date should itself ask the party to
avail the chance of appearing as his own witness, and should also record such fact in its order (order sheet) that a chance was
given to the litigant which had not been availed---However, if such fact was not so recorded by the court though the party was
present and sought its examination such party should initially move an application to the court for examination if the case had
not yet been decided---Where the case was finally decided, a ground should be specifically set in the memo of appeal/ revision
as the case might be, about the presence of the party and asking for the examination, which should be supported by an affidavit
of the counsel of the said party to such effect.

Riaz Ahmed Khan, Advocate Supreme Court for Petitioners (in C.P. 24-Q of 2014).

HadiShakeel Ahmed, Senior Advocate Supreme Court and Ayaz Swati,Advocate Supreme Court for Petitioners (in C.P.
No.22-Q of 2014).

Riaz Ahmed Khan, Advocate Supreme Court for Respondents (in C.P. No.22-Q of 2014).

HadiShakeel Ahmed, Senior Advocate Supreme Court and Ayaz Swati, Advocate Supreme Court for Respondents (in C.P.
No.24-Q of 2014).

Date of hearing: 10th February, 2014.

ORDER

MIAN SAQIB NISAR, J.---The petitioner-plaintiff instituted a suit for declaration etc. against the private
respondents-defendants, in which the latter joined issues and thus the trial commenced; plaintiff adduced and completed his
evidence, while the evidence of the respondents-defendants was closed in terms of Order XVII, Rule 3, C.P.C. as they having
availed quite considerable opportunities failed to do the needful. It may be pertinent to mention here that before the closure of
their evidence, respondents had also moved an application under Order XXVI, Rule 5, C.P.C. seeking indulgence of the court
to examinetwooftheirwitnessesoncommission,whoaccording to themwereresidinginIranandwereunabletocometoPakistan. This
application was turned down by the trial Court vide order dated 9-5-2011, and the order was not further challenged by them
through any revision, rather the respondents filed a review of the above order which again was dismissed on 20-6-2011 and
this review order too was not assailed in the revisional jurisdiction. Be that as it may, ultimately the suit of the petitioner was
decreed on 23-11-2011; the respondents challenged this judgment and decree in appeal, but without
anysuccess,whereaftertheyinvokedtherevisionaljurisdictionof thelearnedHighCourtwhichhas beenacceptedtothe extentthat
theyhavenot beenallowedtoadduceany otherevidence, except to havehis/theirownstatementsrecorded. In this regard the
learned High Court has relied upon Ghulam Rasool v. Rai Ghulam Mustafa and others (1993 SCMR 2026) and Muhammad
Aslam v. Nazir Ahmed (2008 SCMR 942).

2.Learned counsel for the petitioner has argued that as per the facts and circumstances of the instant matter, the afore-stated
dicta are not applicable. In the first case (supra), the party whose evidence was closed by the trial court under Order XVII, Rule
3, C.P.C. had moved to the court to give up his other evidence and pressed only to file his affidavit, but that request was
declined, therefore, this court came to the conclusion that at least to the extent of allowing him to appear as a witness should
have been permitted by the court. As far as the second case is concerned, the delinquent litigant was personally present and
thus it was held that he should have been given an opportunity by the court for having his statement recorded. It is submitted
that in the instant matter, the respondent(s) was not present before the court on 26-11-2006 when his/their evidence was
closed and even Muhammad Aslam's case (supra) is not attracted therefore, to show indulgence to him (them), who admittedly
is a delinquent litigant, would tantamount to allowing someone to misuse and abuse the process of law and justice.

3.Heard. Though the case(s) should not be lightly remanded by the appellate/the revisional courts, especially where there is
sufficient evidence on the record enabling such courts to decide the case itself, and there exist no compelling sufficient reasons
to do so; but the proposition in hand is whether the trial court had illegally and invalidly resorted to the provisions of Order XVII,
Rule 3, C.P.C. and had wrongly closed the evidence of the respondents, which order was unlawfully endorsed by the appellate
court, but that the learned High Court has validly for justified reasons has partly interfered with such order (when
judgments/decrees were challenged before it) and correctly applied the law laid down in the two judgments of this court (supra).
To our mind the revisional court in this context, seemingly was impressed by the fact that as the respondents-defendants were
not marked absent in the order sheet of the trial Court on 26-11-2006 (when Order XVII, Rule 3, C.P.C. was applied) therefore
this omission should not be construed as their absence, rather provided a margin to them assuming their presence, thus the
court enabled them an opportunity of appearance/examination as their ownwitness(orthroughattorney),byrelyinguponthelawlaid
down in Muhammad Aslam (supra). In our comprehension this could possibly be a valid approach of the court in the facts of
this case, therefore, in the instant jurisdiction we are not inclined to interfere in the matter, because such probability of the
respondents presence and they offering themselves to be examined as witnesses cannot be ruled out from the material
available on the record, and the view thus formed by the revisional court cannot be held to be absolutely illegal and unfounded.

4.Notwithstanding our refraining to interfere in the matter on accountofthe above, we are of the candid view that provisions of
Order XVII, Rule 3, C.P.C. are penal in nature and as per the settled law such provisions should be strictly construed and
applied, therefore once the case of a delinquent litigant squarely falls within the purview and mischief of the law (ibid) then
neither any concession should be shown to such litigant nor a lenient view favouring him should be resorted to; this should not
even be permissibly done on the touchstone of exercise of discretionary power of the court and/or on the approach that
technicalities of procedure should not be allowed to impede the interest of justice, and/or that the litigants should not be
knocked out on technical grounds, and that adversarial lis should be settled on merits. If such approach is liberally followed and
resorted to there shall be no discipline in the adjudication of the civil litigation and the delinquent whose case though is squarely
hit and covered by the penal provisions of Order XVII, Rule 3, C.P.C. would be given a chance to his advantage
andtothedisadvantageofhis opposingside. This is not the spirit of the law at all. It may not be out of place to mention here that to
apply and to adhere to law is not a mere technicality, rather it is duty cast upon the court as per Article 4 of the Constitution of
Islamic Republic of Pakistan, 1973 to do so. Thus where Order XVII, Rule 3, C.P.C. is duly attracted, the court has no option
except to take action in accord therewith.

5.In the above context, it may be held that in every case where the action against a delinquent party is imperative and his
evidence has to be closed because the case squarely and eminently falls within the mischief of Order XVII, Rule 3, C.P.C., the
court while closing the evidence is not in any manner obliged to adjourn the case and require or ask the litigant to appear and
examine himself as a witness on a subsequent date. Obviously if the party is present in the court and desires to appear as a
witness the court should not decline his request, rather it shall be appropriate that where the party is present, the court while
applying Order XVII, Rule 3, C.P.C. and closing the evidence on a given date should itself ask the party to avail the chance of
appearing as his own witness, and should also record such fact in its order (order sheet) that a
chancewasgiventothelitigantwhichhasnot beenavailed. However, if this fact is not so recorded by the court though the party was
present and sought its examination such party should initially move an application to the court for examination if the case has
not yet been decided. But where the case is finally decided a ground should be
specificallysetinthememoofappeal/revisionasthecasemaybe about the presence of the party and asking for the examination,
which should be supported by an affidavit of the counsel of the said party to the above effect.

6.Now coming to the other petition (C.P. No.22-Q of 2014) filed by respondents-defendants; the claim agitated therein is that
the learned trialCourtshouldhaveallowedtheapplicationunder Order XXVI, Rule 5, C.P.C. and the two witnesses who were in
Iran should have been examined through commission. We have considered this plea and find that the orders dated 9-5-2011
and 20-6-2011 were never challenged by the respondents through any revision petition. Even these orders have not been
subsequently and precisely challenged in the grounds of appeal, appeal filed by the respondents and the attack in his behalf is
also conspicuously missing in the memo of revision brought by the said respondents before the learned High Court, there are
only general remarks in both the memos of appeal and revision that the orders refusing petitioners (C.P. No.22-Q of 2014)
request is illegal, but there isnochallengetotheseordersintheprayerclauseoftheappeal or the revision petition before the High
Court, therefore, we do not intend to allow the respondents to examine the two witnesses through commission particularly when
the order dated 9-5-2011 as mentioned earlier was not appropriately challenged by the respondents and has attained finality.

7.In the light of the above, both these petitions having no merit are accordingly dismissed. Leave refused. Before parting, it may
be observed that the learned High Court has directed that the suit of the petitioner-plaintiff be decided within a particular period
of time and by virtue of the present litigation or for that matter the instant order, we are not interfering in the direction which
should be accordingly obeyed by the trial Court.

MWA/T-2/SCPetition dismissed.