FATEH SHER vs MUHAMMAD ZUBAIR
This matter concerns a petition for leave to appeal against a High Court judgment that dismissed an appeal regarding a suit for specific performance. The petitioner had failed to produce evidence in the trial court despite multiple opportunities, leading the trial court to close the evidence and dismiss the suit under Order XVII, Rule 3 of the Code of Civil Procedure 1908. During the pendency of the appeal, the respondent introduced an arbitration award, which the petitioner admitted was executed. The core legal question was whether the High Court erred in dismissing the appeal based on the existence of this arbitration award and whether the trial court's closure of evidence was legally justified. The Supreme Court held that the trial court's decision to close the evidence was lawful, given the petitioner's repeated failure to produce evidence. Furthermore, the Court affirmed the High Court's dismissal, noting that the petitioner's admission of the arbitration agreement rendered the appeal meritless. The Court established that where parties have settled a dispute through arbitration, the appellate court may properly consider such an award, and any objections to said award must be pursued under the Arbitration Act 1940.
- Is a trial court justified in closing evidence under Order XVII, Rule 3, Code of Civil Procedure 1908 when a party repeatedly fails to produce evidence?
- Can an appellate court dismiss an appeal based on an arbitration award executed by the parties during the pendency of the appeal?
- What is the appropriate remedy for a party seeking to challenge an arbitration award after an appellate court has dismissed an appeal based on that award?
- Order XVII Rule 3, Code of Civil Procedure 1908
- Arbitration Act 1940
' MUNIR A. SHEIKH, J.---The petitioner filed a suit for specific performance of agreement. The case was fixed for 29-2-2001 for recording his evidence who had earlier been given a number of opportunities. On the said date learned Presiding Officer of the Court was on leave therefore, the case was adjourned to 11-4-2001 for recording the evidence of the petitioner. On the said date the petitioner again requested for adjournment which was given to him and the case adjourned to 2- 5-2001 on which date he again failed to produce evidence therefore, the trial Court proceeded to close his evidence under Order XVII, rule 3, C.P.C. And also proceed to dismiss the suit as there was no evidence to prove the execution of the said agreement.
2. The petitioner filed appeal before the High Court against the said judgment and decree. During the pendency of the appeal the respondent appeared and placed on record award dated 1-5-2001 delivered by the Arbitrator appointed by the parties through agreement dated 29-3-2001. The learned counsel for the petitioner got an adjournment for the purpose of contacting the petitioner in order to ascertain whether he was in the knowledge of the said award but he stated before the learned Judges on the date fixed that he was unable to contact him.
3. The learned Judges of the High Court dismissed the appeal through judgment dated 1-5-2002 on the ground that the matter had been settled by the parties through the Arbitration Agreement and the said award. We find that in the present petition, the petitioner has clearly admitted the execution of arbitration agreement on 29-3-2001 between the parties in which award was delivered
4. The Learned counsel for the petitioner submitted that learned Judges of the High Court should not have dismissed the appeal on the basis of the said award but the same should have been decided on merits. We however, find that the order passed by the learned trial Court for closing his evidence was in accordance with law, for the same was passed on the date which was fixed on the petitioner's request after affording him a number of opportunities for production of evidence. We also infer that the petitioner did not produce the evidence for the reasons that admittedly he had already executed an Arbitration agreement on 29-3-2001.
5. Be that as it may be dismissal of appeal of the petitioner by the High Court by affirming the judgment and decree of the trial Court does not suffer from 'any illegality. If the petitioner has any objection against the award he may seek remedy under the Arbitration Act.
6. The impugned judgment passed by the High Court does not suffer from the illegality therefore, this petition has no merits which is accordingly dismissed and leave refused.
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