2015 C L C 969
2015 C L C 969
[Lahore]
Before Shujaat Ali Khan, J
Haji MUHAMMAD AKRAM and others----Petitioners
versus
PRESIDENT OF LDA and others----Respondents
Writ Petition No.18979 of 2011, decided on 31st March, 2015.
Civil Procedure Code (V of 1908)---
----O. XVII, R. 3---Land Acquisition Act (I of 1894), S.18---Constitution of Pakistan, Art. 199---Constitutional petition---Administration of justice---Non-production of evidence despite numerous opportunities---Closing of evidence---Petitioner impugned order of the Tribunal whereby petitioners' right to produce evidence was closed---Contention of the petitioner was inter alia that law favoured adjudication on merits rather than penalizing a party on basis of technicalities---Held, that any penal action, if taken, against any party while pressing into service the provisions of O.XVII, R.3, C.P.C. in routine, the same may be considered a mere technicality; but where an adverse order had been passed against a party when it failed to comply with the order of the Court despite being given a number of opportunities, the same could not be considered a mere technicality---Evidence of the petitioner, in the present case, was not closed in a causal manner, rather it was done so after affording all possible opportunities to the petitioner to produce evidence---Impugned order did not therefore, suffer from any illegality---Constitutional petition was dismissed, in circumstances.
Syed Tahir Hussain Mehmoodi v. Agha Syed Liaqat Ali 2014 SCMR 637 rel.
Ch. Shaukat Ali Saqib for Petitioners.
Waqar A. Sheikh and Ahmad Ali Ranjha for Respondents.
ORDER
SHUJAAT ALI KHAN, J.--- Through this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioners have assailed order dated 25-6-2011 passed by the President, LDA Tribunal, Lahore (respondent No.1) whereby their right to produce evidence was closed.
2. Succinctly, the facts, forming factual canvass, of the case in hand, are that land of the petitioners was acquired by the LDA for Sabzazar Housing Scheme. Out of the acquired land, there was guava orchard on the land measuring 87 kanals, 1 marla but no price was assessed by the Land Acquisition Collector in the Award towards the price of the said orchard. Consequently, the petitioners filed a Reference before respondent No.1 in the year 1989 through the courtesy of the Land Acquisition Collector, Lahore and the said reference remained pending for more than two decades. On 25-6-2011, the same was fixed for recording of evidence of the petitioners but they failed to produce the same. As a result, their right to produce the evidence was closed by virtue of order dated 25-6-2011, hence this petition.
3. Learned counsel for the petitioners submits that on most of the occasions, the hearing of the reference was postponed due to non-completion of the tribunal thus, the impugned order, whereby the petitioners have been penalized while closing their right of evidence, is not only harsh but unjustifiable too; that on number of occasions, the petitioners produced their witnesses but they could not be examined due to the reasons not attributed to the petitioners; that the impugned order is not sustainable for the reason that on the fateful day, composition of the LDA Tribunal was not complete; that by virtue of the impugned order, the petitioners have been deprived of their vested right to prove their case by recording their evidence before respondent No.1; that the law favour the adjudication of the matters on merits instead of penalizing the parties on the basis of technicalities and that in case the impugned order is not set-aside, the petitioners are bound to suffer an irreparable loss in addition to incalculable injury.
4. Conversely, learned counsel appearing on behalf of respondents state that though on some dates, the hearing of reference was postponed due to non-completion of the Tribunal, however, almost on dozen of occasions, the hearing could not be matured pursuant to the request of the petitioner or due to non-availability of their witnesses; that admittedly, the reference was filed in the year 1989 and when the petitioners did not produce their evidence till the year 2006, respondent No.1 was left with no option but to close their right of recording of evidence; that as the impugned order has been passed after affording numerous opportunities to the petitioners to produce evidence, the same cannot be considered as mere technicality; that during pendency of the reference, the petitioners have already accepted compensation in the shape of cash as well as developed plots, thus there is nothing left to be proceeded by respondent No.1.
5. Learned counsel appearing on behalf of the petitioners, while exercising his right of rebuttal, states that since no compensation has been received by the petitioners in lieu of guava orchard standing in the land of the petitioners, acquired by the government, their grievance is still alive.
6. I have heard learned counsel for the parties and have also gone through the documents annexed with this petition and those forming part of report and parawise comments in particular the order sheet of respondent No.1.
7. Firstly taking up the plea of the petitioners that as the Tribunal was not properly constituted on 25-6-2011, the order regarding closure of petitioners' right to produce evidence has no legal sanctity in the eye of law, I do not find myself in agreement with learned counsel for the petitioner for the reason that learned counsel has failed to refer to any material to show that on the fateful day, the Tribunal was not properly constituted.
Considering from another angle, a perusal of the order sheet of the Reference shows that when the Tribunal was not complete, the hearing was adjourned for some future date with specific note in that behalf. In this backdrop, the objection raised by learned counsel for the petitioners qua non-completion of the Tribunal is hereby spurned.
8. So far as the contention of learned counsel for the petitioner that law favours the adjudication of lis on merits instead of technicalities is concerned suffice it to observe that if any penal action is taken against the parties while pressing into the service the provisions of Order XVII, Rule 3, C.P.C. in routine that can be considered as a mere technicality but where an adverse order has been passed against a party when it fails to comply with the order of the court despite availing number of opportunities, the same cannot be considered as mere technicality. In this regard, I stand guided by very illuminated judgment of the apex Court of the Country in the case reported as Syed Tahir Hussain Mehmoodi v. Agha Syed Liaqat Ali (2014 SCMR 637) wherein, while dealing with the question under discussion, it has inter alia been held as under:---
"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."
If we adjudge the case of the petitioners on the touchstone of the afore-quoted judgment of Hon'ble Supreme Court of Pakistan, it comes to surface that penal action against the petitioners was taken as a last resort. A glance over the order sheet of the Tribunal depicts that the same was fixed for recording of evidence of the parties on 17-2-2004 whereafter the same was fixed for the said purpose on number of occasions but the petitioners failed to produce their evidence on 12-3-2005, 17-5-2002(sic), 19-7-2005, 27-9-2005, 26-11-2005, 17-1-2006, 28-4-2006, 2-9-2006, 23-11-2006, 27-1-2007, 15-3-2007, 19-5-2007, 14-9-2007, 1-11-2007, 5-4-2008, 5-6-2008, 28-6-2008, 9-7-2008, 31-1-2009, 27-2-2009, 18-3-2009, 16-1-2010, 18-10-2010, 23-11-2010, 20-12-2010, 22-1-2011, 1-3-2011, 30-3-2011 and 25-6-2011. In this pathetic state of affairs, it is crystal clear that that respondent No.1 did not close the evidence of the petitioners in casual manner rather he opted to do so after affording all possible opportunities to the petitioners to produce their evidence. In this scenario the order impugned in the lis at hand cannot be considered as mere technicality.
9. The conduct of the petitioners during the proceedings in the reference, filed by themselves, shows that they did not pursued it seriously rather kept it pending without any material progress. There is no denial of the fact that on certain dates, no substantive hearing could be possible due to non-completion of the Tribunal or for any other reason not attributed to the petitioner but they cannot take any premium on the said ground for the reason that they have failed to give any plausible answer for non-production of the evidence on the dates enumerated above.
10. As a necessary corollary to the discussion made in the foregoing paragraphs, I have no doubt in my mind to hold that the order impugned does not suffer from any illegality justifying any interference by this court in exercise of jurisdiction vested under Article 199 of the Islamic Republic of Pakistan, 1973. Consequently, I see no force in this petition which is accordingly dismissed with no order as to costs.
KMZ/M-90/L Petition dismissed.
[Lahore]
Before Shujaat Ali Khan, J
Haji MUHAMMAD AKRAM and others----Petitioners
versus
PRESIDENT OF LDA and others----Respondents
Writ Petition No.18979 of 2011, decided on 31st March, 2015.
Civil Procedure Code (V of 1908)---
----O. XVII, R. 3---Land Acquisition Act (I of 1894), S.18---Constitution of Pakistan, Art. 199---Constitutional petition---Administration of justice---Non-production of evidence despite numerous opportunities---Closing of evidence---Petitioner impugned order of the Tribunal whereby petitioners' right to produce evidence was closed---Contention of the petitioner was inter alia that law favoured adjudication on merits rather than penalizing a party on basis of technicalities---Held, that any penal action, if taken, against any party while pressing into service the provisions of O.XVII, R.3, C.P.C. in routine, the same may be considered a mere technicality; but where an adverse order had been passed against a party when it failed to comply with the order of the Court despite being given a number of opportunities, the same could not be considered a mere technicality---Evidence of the petitioner, in the present case, was not closed in a causal manner, rather it was done so after affording all possible opportunities to the petitioner to produce evidence---Impugned order did not therefore, suffer from any illegality---Constitutional petition was dismissed, in circumstances.
Syed Tahir Hussain Mehmoodi v. Agha Syed Liaqat Ali 2014 SCMR 637 rel.
Ch. Shaukat Ali Saqib for Petitioners.
Waqar A. Sheikh and Ahmad Ali Ranjha for Respondents.
ORDER
SHUJAAT ALI KHAN, J.--- Through this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioners have assailed order dated 25-6-2011 passed by the President, LDA Tribunal, Lahore (respondent No.1) whereby their right to produce evidence was closed.
2. Succinctly, the facts, forming factual canvass, of the case in hand, are that land of the petitioners was acquired by the LDA for Sabzazar Housing Scheme. Out of the acquired land, there was guava orchard on the land measuring 87 kanals, 1 marla but no price was assessed by the Land Acquisition Collector in the Award towards the price of the said orchard. Consequently, the petitioners filed a Reference before respondent No.1 in the year 1989 through the courtesy of the Land Acquisition Collector, Lahore and the said reference remained pending for more than two decades. On 25-6-2011, the same was fixed for recording of evidence of the petitioners but they failed to produce the same. As a result, their right to produce the evidence was closed by virtue of order dated 25-6-2011, hence this petition.
3. Learned counsel for the petitioners submits that on most of the occasions, the hearing of the reference was postponed due to non-completion of the tribunal thus, the impugned order, whereby the petitioners have been penalized while closing their right of evidence, is not only harsh but unjustifiable too; that on number of occasions, the petitioners produced their witnesses but they could not be examined due to the reasons not attributed to the petitioners; that the impugned order is not sustainable for the reason that on the fateful day, composition of the LDA Tribunal was not complete; that by virtue of the impugned order, the petitioners have been deprived of their vested right to prove their case by recording their evidence before respondent No.1; that the law favour the adjudication of the matters on merits instead of penalizing the parties on the basis of technicalities and that in case the impugned order is not set-aside, the petitioners are bound to suffer an irreparable loss in addition to incalculable injury.
4. Conversely, learned counsel appearing on behalf of respondents state that though on some dates, the hearing of reference was postponed due to non-completion of the Tribunal, however, almost on dozen of occasions, the hearing could not be matured pursuant to the request of the petitioner or due to non-availability of their witnesses; that admittedly, the reference was filed in the year 1989 and when the petitioners did not produce their evidence till the year 2006, respondent No.1 was left with no option but to close their right of recording of evidence; that as the impugned order has been passed after affording numerous opportunities to the petitioners to produce evidence, the same cannot be considered as mere technicality; that during pendency of the reference, the petitioners have already accepted compensation in the shape of cash as well as developed plots, thus there is nothing left to be proceeded by respondent No.1.
5. Learned counsel appearing on behalf of the petitioners, while exercising his right of rebuttal, states that since no compensation has been received by the petitioners in lieu of guava orchard standing in the land of the petitioners, acquired by the government, their grievance is still alive.
6. I have heard learned counsel for the parties and have also gone through the documents annexed with this petition and those forming part of report and parawise comments in particular the order sheet of respondent No.1.
7. Firstly taking up the plea of the petitioners that as the Tribunal was not properly constituted on 25-6-2011, the order regarding closure of petitioners' right to produce evidence has no legal sanctity in the eye of law, I do not find myself in agreement with learned counsel for the petitioner for the reason that learned counsel has failed to refer to any material to show that on the fateful day, the Tribunal was not properly constituted.
Considering from another angle, a perusal of the order sheet of the Reference shows that when the Tribunal was not complete, the hearing was adjourned for some future date with specific note in that behalf. In this backdrop, the objection raised by learned counsel for the petitioners qua non-completion of the Tribunal is hereby spurned.
8. So far as the contention of learned counsel for the petitioner that law favours the adjudication of lis on merits instead of technicalities is concerned suffice it to observe that if any penal action is taken against the parties while pressing into the service the provisions of Order XVII, Rule 3, C.P.C. in routine that can be considered as a mere technicality but where an adverse order has been passed against a party when it fails to comply with the order of the court despite availing number of opportunities, the same cannot be considered as mere technicality. In this regard, I stand guided by very illuminated judgment of the apex Court of the Country in the case reported as Syed Tahir Hussain Mehmoodi v. Agha Syed Liaqat Ali (2014 SCMR 637) wherein, while dealing with the question under discussion, it has inter alia been held as under:---
"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."
If we adjudge the case of the petitioners on the touchstone of the afore-quoted judgment of Hon'ble Supreme Court of Pakistan, it comes to surface that penal action against the petitioners was taken as a last resort. A glance over the order sheet of the Tribunal depicts that the same was fixed for recording of evidence of the parties on 17-2-2004 whereafter the same was fixed for the said purpose on number of occasions but the petitioners failed to produce their evidence on 12-3-2005, 17-5-2002(sic), 19-7-2005, 27-9-2005, 26-11-2005, 17-1-2006, 28-4-2006, 2-9-2006, 23-11-2006, 27-1-2007, 15-3-2007, 19-5-2007, 14-9-2007, 1-11-2007, 5-4-2008, 5-6-2008, 28-6-2008, 9-7-2008, 31-1-2009, 27-2-2009, 18-3-2009, 16-1-2010, 18-10-2010, 23-11-2010, 20-12-2010, 22-1-2011, 1-3-2011, 30-3-2011 and 25-6-2011. In this pathetic state of affairs, it is crystal clear that that respondent No.1 did not close the evidence of the petitioners in casual manner rather he opted to do so after affording all possible opportunities to the petitioners to produce their evidence. In this scenario the order impugned in the lis at hand cannot be considered as mere technicality.
9. The conduct of the petitioners during the proceedings in the reference, filed by themselves, shows that they did not pursued it seriously rather kept it pending without any material progress. There is no denial of the fact that on certain dates, no substantive hearing could be possible due to non-completion of the Tribunal or for any other reason not attributed to the petitioner but they cannot take any premium on the said ground for the reason that they have failed to give any plausible answer for non-production of the evidence on the dates enumerated above.
10. As a necessary corollary to the discussion made in the foregoing paragraphs, I have no doubt in my mind to hold that the order impugned does not suffer from any illegality justifying any interference by this court in exercise of jurisdiction vested under Article 199 of the Islamic Republic of Pakistan, 1973. Consequently, I see no force in this petition which is accordingly dismissed with no order as to costs.
KMZ/M-90/L Petition dismissed.
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