SAEED AHMAD MALIK Versus Rana MUZAFFAR ALI

CH. IJAZ AHMAD, J.‑‑‑ Brief facts out of which the present appeal arises are that the respondent and the appellant executed an agreement to sell on 7‑7‑1992 for a consideration of Rs.94 Lac qua the land measuring 21‑1/2 acres. According to the agreement appellant has paid Rs.50,00,000 to the respondent. Respondent failed to execute the sale‑deed in favour of the appellant. Appellate being aggrieved filed a suit for specific performance and possession in the Court of Civil Judge First Class Ferozewala, District Sheikhupura, on 10‑4‑1994. The respondent filed the written statement by controverting the allegations leveled in the plaint. Out of the pleadings of the parties the trial Court framed the following issues:‑‑

(1) Whether the plaintiff has got no cause of action to file this suit? OPD.

(2) Whether this suit is bad for non joinder of necessary parties? OPD.

(3) Whether the alleged agreement to sell dated 7‑7‑1992 is fake, fictitious, forged and is not enforceable at law? OPD.

(4) Whether this suit is based upon mala fide intention and as such it is liable to be dismissed? OPD.

(5) Whether this suit is false, frivolous, vexatious and as such the defendant is entitled to recover special costs under section 35‑A, C.P.C.? OPD.

(6) Whether the defendant entered into a valid agreement of sale dated 7‑7‑1992 regarding suit‑land and as such the plaintiff is entitled to the decree for specific performance of contract? OPP.

(7) Relief.

The appellant filed two applications before the trial Court, one under Order 39, rules 1 and 2, C.P.C. and the second under Order 1, rule 10, read with section 151, C.P.C., which were dismissed by the trial Court vide order dated 14‑3‑1996 and the case was adjourned for evidence of the appellant/plaintiff for 14‑4‑1996. The appellant failed to produce evidence on 14‑4‑1996 and the case was adjourned on the request of the appellant for 7‑5‑1996. The appellant/plaintiff failed to produce evidence before the trial Court on 7‑5‑1996 and the case was adjourned at the request of the appellant for 3‑6‑1996. The appellant/plaintiff failed to bring the evidence on 3‑6‑1996 and the trial Court struck off the defence of the appellant/plaintiff and dismissed the suit vide judgment and decree dated 3‑6‑1996, hence, the present appeal.

2. Learned counsel for the appellant submits that only two opportunities were provided to the appellant by the trial Court to produce the evidence and invoked the penal provisions of Order 17, rule 3, C.P.C. without application of mind, without considering the controversy arising between the parties in the suit in question. Learned counsel for the respondent submits that the suit was filed on 10‑4‑1995 and four opportunities were granted by the trial Court to the appellant to produce the evidence but the appellant failed to avail the same. He further submits that the preceding two orders reveal that the case was adjourned at the request of the appellant/plaintiff's counsel, therefore, trial Court was justified to struck of the defence of the appellant, which is in consonance with the law laid down by the Superior Courts. In support of his contentions he relied upon Mst. Zahida Begum and another v. Muhammad Shafique (PLD 1997 SC 73), Muhammad Aslam and others v. Ijaz Ahmad and others (1982 SCMR 622), Amir and another v. Sardar Ahmad (1985 SCMR 1223(2)) and (PLD 1992 AJK 205) there is no judgment at the cited page.

3. We have considered the contentions of the learned counsel for the parties and perused the record. It is better and appropriate to reproduce the preceding orders dated 14‑4‑1996 and 7‑5‑1996, which are as under:‑‑

It is pertinent to mention here that the order dated 7‑5‑1996 reveals certain cuttings i.e. that the case was adjourned for 3‑8‑1996 and thereafter it was adjourned for 3‑6‑1996. All these alterations in the order dated 7‑5‑1996 are not signed by the Presiding Officer. It is settled principle of law that nobody could be penalized by the act of the Court as the law laid down by the Division Bench in Mian Irshad Ali v. Government of Pakistan through Secretary, Ministry of Rehabilitation, Islamabad and 13 others (PLD 1975 Lahore 7). The trial Court at the time of invoking the penal provisions of Order 17, rule 3, C.P.C. did not consider the aforesaid facts. The case of the appellant is that the trial Court invoked the penal provisions without application of law laid down by the Honourable Supreme Court in Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 SC 173). It is pertinent to mention here that the appellant allegedly has paid Rs.50,00,000 to the respondent as is evident from the agreement. The Honourable Supreme Court insisted that the cases be decided on merits instead of technicalities as the law laid down in Said Muhammad and others v. M. Sardar and others (PLD 1989 SC 532). In case the aforesaid orders are to be read as a whole then we are not satisfied that the trial Court has given sufficient opportunity to the appellant to produce the evidence, therefore, the trial Court committed material irregularities. It is the discretion of the Curt to exercise its discretion to close the evidence of the parties under Order 17 rule 3, C.P.C. According the firmly settled law such discretion is to be exercised judicially on relevant consideration in the light of and circumstances of each case and not whimsically or power conferred on Court Order V P.C. is very drastic and should be used only in exceptional the Court in satisfied that party is trifling with court or contemptuous to the proceedings or is purposely in order to harass the adversary. In arriving to we are fortified by the law laid down by the Honourable Supreme Court in Abdul Rashid and another v. Fazal Karim (NLR 1981 AC 88).

In view of what has been discussed above the appeal is accepted, the impugned judgment and decree, dated 30‑6‑1996 is set aside. Appellant is granted one opportunity to produce the evidence before the trial Court subject to payment of costs of Rs.10,000, out of which Rs.5,000 shall be paid to the respondent in the Court on the next date, of hearing and Rs.5,000 to the account of the Dispensary of the High Court Bar Association. Parties are directed to appear before the trial Court on 8‑3‑2004, who is directed to provide one opportunity to the appellant to produce his evidence. In case the appellant fails to comply the aforesaid direction then law will take its own course.

M.H./S‑26/L Appeal allowed.