MUHAMMAD MAHMOOD vs GHULAM RASOOL And Other
This matter originated as a suit for specific performance of a contract of sale filed by the petitioner against the sole defendant, Nazir Hussain. Following the defendant's failure to appear, the trial court ordered ex parte proceedings based on a process-server's report of personal service. The defendant subsequently applied to set aside these proceedings, alleging he was never served. The trial court framed an issue regarding the validity of the service. Over the next three years, the petitioner failed to produce evidence to rebut the defendant's claim of non-service despite numerous adjournments. Consequently, the trial court closed the petitioner's evidence, ruled in favor of the defendant, and set aside the ex parte order. The High Court dismissed the petitioner's revision, leading to the current petition for leave to appeal. The Supreme Court held that the trial court acted within its discretion in closing the petitioner's evidence after three years of inaction. The Court affirmed that a litigant cannot claim insufficient opportunity when they fail to utilize multiple opportunities provided over an extended period.
- Can a trial court close a party's evidence after they fail to produce it over a period of three years?
- Is a trial court justified in setting aside ex parte proceedings when the defendant successfully challenges the validity of service?
- Does the failure to utilize multiple opportunities for evidence production constitute a valid ground for challenging a trial court's order to close evidence?
SAAD SAOOD JAN, J.--On 18-5-1981 the petitioner filed a suit for specific performance of a contract of sale of a shop. Nazir Hussain, now dead, was the sole defendant. The summons was issued to him for 6-6-1981. On that day he did not appear in the Court. The learned Judge found from the report of the process-server that he had been served in person. Accordingly, he directed that ex parte proceedings be taken against him. The case was then adjourned to 25-6-1981. Three days before this date, Nazir Hussain applied for setting-aside of the ex parte proceedings on the ground that he had not received any summons. This application was opposed by the petitioner.
Consequently, the learned trial Court framed an issue to the effect whether the service upon Nazir Hussain was fictitious. Nazir Hussain concluded his evidence on this issue on 13-5-1982. The proceedings were then adjourned to different dates over a period of about three years for the evidence of the petitioner. He did not care to lead his evidence during all this period. Ultimately, on 4-5-1985 the trial Court closed his evidence, decided the issue in favour of Nazir Hussain and set- aside the order with regard to the holding of ex parte proceedings. The petitioner challenged the order of the trial Court in revision before the High Court. His revision petition was dismissed. He now 'seeks leave tc appeal from this Court.
2. In support of this petition it is stated that the learned trial Court had not given the petitioner sufficient opportunity to lead his evidence in rebuttal to that led by Nazir Hussain. We find no merit in this contention. The petitioner had about three years to produce his evidence. No greater indulgence could be shown to him, He failed to take advantage of the many opportunities given to him in this regard. The learned trial Court was, therefore, fully justified in closing his evidence. This petition is without any merit and is hereby dismissed.
Cited by 2 cases
- HAJI Versus Mst. SAINDINI 2017 YLRN 307
- HIMMAT KHAN Versus ABDUL REHMAN KHAN 2005 MLD 74