HADI BAKHSH Versus ADDITIONAL DISTRICT JUDGE

1. This Constitutional petition is directed against the orders, dated 12th of March, 1991 and 21st of July, 1991 passed respectively by the Civil Judge and the Additional District Judge, Khushab, closing the right of production of evidence of the petitioner by applying Order 17, Rule 3, C.P.C.

2. Facts briefly are that respondent Atta Muhammad being owner filed a suit on 14‑4‑1988 for possession relating to House No.4083/Q/RH situated in Khushab City. This was resisted by the petitioners‑defendants _and out of the pleadings of the parties the following issues were framed:‑‑

(1) Whether the suit is not in its present form?

(2) Whether the suit is mala fide and as such suit is liable to be dismissed?

(3) Whether the plaintiff is estopped by his own words and conduct to file this suit?

(4) Whether the suit is incorrectly valued for the purposes of court‑fee and jurisdiction if so, what is correct one?

(5) Whether the plaintiff has got no cause of action and locus standi to file this suit?

(6) Whether the suit is time‑barred?

(7) Whether the plaintiff is owner of the suit property and as such he is entitled to have the possession thereof?

(8) Whether the defendants are entitled to recover special costs under section 35‑A, C.P.C.?

(9) Relief.

3. The respondents/plaintiffs' evidence was completed on 20‑5‑1990 whereafter the case was adjourned to 24th of July, 1990 for the evidence of the petitioners‑defendants. However, the case on that date could not proceed because of the general strike of the Lawyers' community. Again the case was adjourned to 8th September, 1990 but since the evidence was not available, as such, it was adjourned to 20th October, 1990. On this adjourned date the witnesses were present but the evidence could not be recorded. Again it was adjourned to 21st of November, 1990 on which date too the witnesses were present but the evidence could not be recorded because the learned counsel for the petitioners/defendants was not available because of the sickness of his children. Thereafter, on three successive dates the petitioners could not produce their evidence. I have noticed in this case that the evidence was produced by the petitioners/defendants twice but the same could not be recorded because of the personal problems of the learned, counsel, The case was adjourned without any objection by the respondents' side. In this background, it cannot be said that the non‑production of the evidence by the petitioners' side is a contumacious act on their part.

4. Learned counsel for the petitioners in support of his contention has relied upon Syed Tasleem Ahmad Shah v. Sajawal Khan, etc. (1985 SCMR 585). I have also noticed that the suit was instituted in March, 1988 and the respondents' side took more than 2' years in producing their evidence. It is the consistent policy of the Courts that the matter shall be decided on merits instead of technical knock‑out. It may not be overemphasized that such a penal provision is to be strictly construed. Here in this case the petitioners‑defendants produced their evidence twice but it could not be recorded for the reason beyond their control. In this view of the matter, interest of justice demands that the matter shall be decided on merits. Accordingly both the impugned orders are held to be of no legal effect and the case is remitted to the Trial Court where the parties are directed to appear on 7th of April, 1993. The matter shall be decided within two months. There shall be no order as to costs.

5. A.A./H‑42/L Case remanded.