Muhammad Ehsan vs A.D.J etc.

Form No.HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH BAHAWALPUR

JUDICIAL DEPARTMENT

Writ Petition No.8094 of 2020

Muhammad Ehsan

Versus Additional District Judge, Chishtian, District Bahawalnagar and another S.No. of order/ Date of order/ Order with signature of Judge and that of parties or counsel, proceeding proceeding where necessary

14.12.2020 Mr. Muhammad Ayaz Kalyar, Advocate.

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question the order dated 05th December, 2020, whereby the learned Additional District Judge, Chishtian, proceeded to close the evidence of the petitioner.

2.The facts in brief, necessary for adjudication of instant petition are that respondent No.2 (hereinafter referred as “respondent”) instituted a suit under Order XXXVII of the Code of Civil Procedure (V of 1908) (hereinafter referred as “CPC”) seeking recovery of Rs.5,00,000/- on the basis of promissory note alongwith receipt dated 29th April, 2017 purportedly executed by the petitioner. The suit was contested by the petitioner being defendant, who filed his written statement wherein he controverted the assertions contained in the plaint. From the divergent pleadings of the parties, learned trial court framed multiple issues and recorded evidence of the “respondent”. On completion of evidence of “respondent”, the petitioner was directed to produce his evidence but despite availing number of opportunities, he failed to produce any evidence resultantly the learned Trial Court closed his evidence vide impugned order dated 05th December, 2020, hence this petition.

3.Learned counsel for the petitioner contended that the petitioner was not afforded adequate opportunity by the learned Trial Court for producing evidence. He added that law favours the adjudication on merits, rather than knocking out the parties on the basis of technicalities. Learned counsel emphasized that the local Bar of Tehsil Chishtian District Bahawalnagar was observing strike on three consecutive dates and on said account no effective proceedings though have taken place but petitioner has been penalized without his fault. Learned counsel argued that order dated 05th December, 2020 resulting into closure of evidence of the petitioner is harsh and not tenable under the law.

4.Heard. Record perused.

5.The suit was instituted by the “respondent” on 28th August, 2019 in the summary character as provided under Order XXXVII of “CPC”. The petitioner in order to resist the suit initially moved an application under Order XXXVII Rule 3 of “CPC” seeking leave to appear and defend which was accepted, as a result thereof, he filed written statement and controverted the assertions contained in the plaint. From the divergent pleadings of the parties the learned trial court framed multiple issues on 09th March, 2020 and case was fixed for evidence of the “respondent”. Evidence of the “respondent” was completed on 06th November, 2020 and the petitioner was directed to produce his evidence. The petitioner then availed multiple opportunities to produce evidence but he failed to produce the same. The learned Additional District Judge was thus left with no other option except to invoke the penal provisions.

6.Order XXXVII Rule 7 of “CPC” provides that procedure in summary suits shall be the same as the procedure in suits instituted in the ordinary manner. The right to produce evidence of the petitioner was closed, while invoking penal clause contained in Rule 3 of Order XVII of

“CPC”. The moot point which requires determination is thus restricted to the applicability of penal provisions contained in Order XVII of the Code ibid. For the sake of guidance and ready reference Rule 3 of Order XVII of “CPC” is reproduced below :-

“3. Court may proceed notwithstanding either party fails to produce evidence, etc.-- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.”

It is quite obvious from the above quoted provision that the court is vested with the authority to decide the suit forthwith in case any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time was granted.

7.It appears that the legislature, while inserting the penal provisions in the form of Order XVII Rule 3 of “CPC” was quite cognizant of the fact that litigants may abuse the process of court by using the un-called for delaying tactics in order to achieve their illegal designs. Such penal provisions are neither illusory nor ineffective, rather the same will come into play automatically with full force and rigours depending upon the facts and circumstances of each case in order to save the ends of justice from being defeated in the hands of chronic litigants. In the case of Syed TAHIR HUSSAIN MEHMOODI and others vs. Agha Syed LIAQAT ALI and others (2014 SCMR 637), the Hon’ble Supreme Court of Pakistan while dealing with the similar proposition held as under :-

“4. Notwithstanding our refraining to interfere in the matter on account of the 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 and to the disadvantage of his opposing side. 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.”

The same view was further reiterated by the Hon’ble Apex Court in the case of Rana TANVEER KHAN vs. NASEER-UD-DIN and others (2015 SCMR 1401). The relevant extract is reproduced below :-

“2 Heard. It has been argued that only within a period of 1 month and 26 days, the evidence of the appellant was closed; besides, the appellant should have been asked by the court to at least have his statement recorded; it is further argued that no direction was issued to the appellant to produce his evidence and thus the case is covered by the judgment of this Court (supra). Before proceeding further, it may be pertinent to mention here that the case Muhammad Arshad (supra mentioned in the leave granting order) by itself is only a leave granting order and is not the enunciation of law by this Court. Be that as it may, once the case is fixed by the Court for recording the evidence of the party, it is the direction of the court to do the needful, and the party has the obligation to adduce evidence without there being any fresh direction by the court, however, where the party makes a request for adjourning the matter to a further date(s) for the purposes of adducing evidence and if it fails to do so, for such date(s), the provisions of Order XVII, Rule 3, C.P.C. can attract, especially in the circumstances when adequate opportunities on the request of the party has been availed and caution is also issued on one of such a date(s), as being the last opportunity(ies)..........”

After having an overview of the principles mentioned hereinabove, I am of the considered opinion that the learned Trial Court was right in its approach to invoke the penal provisions contained in Order XVII Rule 3 of “CPC”.

8.The procedural requirements are not meant to alter the same on the whims of the parties. It is now high time to curb the tendency of prolonging the matter on false pretext. Every litigant is expected to prosecute his cause with all diligence and hilt and if somebody opts to thwart the process of law, he is liable to face the penal consequences provided therein. The courts cannot sit as silent spectator in such circumstances and shut their eyes on the flagrant violation of law. There is no cavil that every litigant has an inalienable right to be provided an opportunity of fair trial but the penal provisions inserted in “CPC” are not illusory, the same will come into play with full rigours when a party defaults in discharging its duty in the light of relevant provisions.

9.While adverting to the contention of learned counsel for the petitioner that the Local Bar of Tehsil Chishtian was observing strike on previous three dates when case was fixed for evidence of the petitioner and this was the reason for non-producing the evidence by the petitioner, suffice to observe that every professional pursuit and calling is subservient to law and so is the legal practice. A counsel is bound to appear in the Court when a matter is called so as to represent his paymaster and in the event of default, the Court may proceed with the case regardless of the consequences befalling upon the unrepresented client, who may sue the counsel for any injury or loss on account of failure to provide him legal assistance. It is also noteworthy to mention here that the lawyers have no right to strike i.e. to abstain from appearing in Court in cases in which they hold power of attorney (Wakalatnama) for the parties, even if it is in response to or in compliance with a decision of any

association or body of lawyers. In exercise of the right to protest, a lawyer may refuse to accept new engagements and may even refuse to appear in a case in which he had already been engaged, if he has been duly discharged from the case. But so long as a lawyer holds the power of attorney for his client and has not been duly discharged, he has no right to abstain from appearing in Court even on the ground of a strike called by the Bar Association or any other body or lawyers. If he so abstains, he commits a professional misconduct, a breach of professional duty, a breach of contract and also a breach of trust and he will be liable to suffer all the consequences thereof. In somewhat similar facts and circumstances in Civil Petition No.3985 of 2019 the Hon’ble Supreme Court of Pakistan, while discarding the excuse of strike of Bar upheld the judgments resulting into striking of right of cross-examination in terms of Order XVII Rule 3 of “CPC”. This Court in the case of Ch. SHAMSHAIR ALI vs. KHALID MAHMOOD (2015 YLR 47) while dealing with similar proposition held as under :- “8. In every procedural law, it is the "Party" to a proceedings, who has been held responsible to perform certain acts and in case of default on the part of such party, the penalty is liable to be invoked upon such party. Similarly in Order XVII, Rule 3 C.P.C., where "party" to a suit to whom time has been granted, fails to produce his evidence, the court may notwithstanding such default proceed to decide the suit forthwith. Nowhere a latitude is provided in case the learned counsel representing a party does not appear.

9.In our common practice the lawyers and Advocates are known and called as "Vakeel' () وکیل. It is an Arabic word and in '( )بیان للسانby " " قاضی زینالعابدین سجاد میرٹھیpublished by " " داراالشاعت کراچیthe meanings of word " "وکیلhave been provided as follows:- وہ اآدمی جس کے سپرد دوسرے لوگ، دوسروں کے کام بنانے واال،"کارساز "اپنا کام کریں "وکیل" ہللا کا صفاتی نام ہے اور ہللا کی وہ خصوصیت وکیل کہلوانے والے "انسان سے بھی متوقع ہے

In Pakistan, the Legal Practitioners and Bar Councils Act, 1973 was promulgated with certain modifications, re-enacting the law relating to Legal Practitioners and Bar Councils and to provide for certain incidental and ancillary matters.

10.In exercise of powers conferred by section 55 of the said Act, the Pakistan Bar Council makes the Rules known as Pakistan Legal Practitioners and Bar Councils Rules, 1976. Chapter XII thereof provides the canons of profession, conduct and etiquette of Advocates. Rule 134 whereof provides that it is duty of every Advocate to uphold at all times the dignity and high standing of his profession, as well as his own dignity and high standing as a member thereof. Rule 166 provides that ‘it is the duty of Advocates to appear in Courts when a matter is called and if it is not so possible to make satisfactory alternative arrangements'.

11.For Province of Punjab, the Punjab Bar Council in exercise of powers conferred by section 56 of the Legal Practitioners and Bar Councils Act, 1973 (Act XXXV of 1973), provides the Rules of Business of Bar Association- Memorandum of Association. Rule 4(i) of the said Rules provides the duties of the lawyers as to act without fear or favour for just cause of his clients and according to Rule 4(ii) of the said Rules, it is the duty of the lawyer to devote himself to the cause of his client diligently.

12.What emerges from the above discussion is that there is no escape for a lawyer, who has been engaged to look after the interest and cause of his client by disappearing or non- appearing in judicial proceedings before a court of law. The trend of strikes should not be stretched in any manner that on every second day, the courts are told that the lawyers are not performing their statutory duties. On every other day, we experience that it is being noted in the order sheets of the courts of law that lawyers are observing strike and for that reason, the judicial process is being interfered with and courts are not allowed to proceed with the matters in absence of the lawyers, who on every 2nd day on petty matters observe strike.”

Reference can also be made to ASGHAR ALI vs. The STATE and another (2017 MLD 535) and Dr. B.L. Wadehra vs. State (NCT of Delhi) and others (AIR 2000 DELHI 266).

10.The constitutional jurisdiction has a very limited scope and in order to succeed, the petitioner(s), who is/are desirous to invoke extraordinary jurisdiction of this Court has/have to demonstrate some patent illegality or perversity in the judgment/order under assailance. In view of circumstances discussed hereinabove, I do not see any illegality or material irregularity in the order passed by the learned Additional District Judge. The constitutional jurisdiction is always exercised with great care and caution in such matters as the same cannot be used as a substitute for an appeal.

11.The nutshell of above discussion is that this petition is devoid of any merits, as such it fails and is accordingly dismissed in limine.

(MIRZA VIQAS RAUF)

JUDGE

APPROVED FOR REPORTING

JUDGE

Shahbaz Ali*