2015 Y L R 47
2015 Y L R 47
[Lahore]
Before Ibad-ur-Rehman Lodhi, J
Ch. SHAMSHAIR ALI---Petitioner
Versus
KHALID MAHMOOD---Respondent
Civil Revision No.1648 of 2014, decided on 9th May, 2014.
(a) Civil Procedure Code (V of 1908)---
----O.XVII, R.3---Legal practitioners and Bar Councils Act (XXXV of 1973), S.56---Pakistan Legal Practitioners and Bar Councils Rules, 1976, Rr. 134 & 166---Closure of evidence---Strike by District Bar after 11-00 a.m.---Scope---Right to produce remaining evidence of plaintiff was closed after granting fifty two opportunities for the same---Contention of plaintiff was that District Bar was observing strike and no effective proceedings could have been taken and provisions of O.XVII, R.3, C.P.C. could not be applied---Validity---Party to a proceedings who had been held responsible to perform certain acts would be liable to be penalized in case of default on the part of such party---Court might proceed to decide the suit forthwith where party to a suit to whom time had been granted had failed to produce his evidence notwithstanding such default---Call of strike was taken as a cover---Counsel was bound to appear in the court when a matter was called and if same was not so possible then to make satisfactory alternative arrangements---Counsel was bound to act without fear or favour for just cause of clients diligently---Counsel could not escape from proceedings before a Court of law---No illegality or irregularity had been pointed out in the impugned order---Revision was dismissed in circum-stances.
Amanullah v. Haq Nawaz and 3 others 2013 CLC 1152; Muhammad Aslam v. Nazir Ahmed 2008 SCMR 942 and Shambilid Ghori and another v. Mst. Tayyaba Begum PLD 1989 Lah. 478 ref.
(b) Words and Phrases---
----"Vakeel"---Meaning.
Tahir Mahmood Khokhar for Petitioner.
ORDER
IBAD-UR-REHMAN LODHI, J.---By means of this Civil Revision Petition, the petitioner has assailed the findings of the learned trial court arrived at on 20-2-2014, whereby the right to produce remaining evidence of the plaintiff/present petitioner was closed by invoking the penal provisions of Order XVII, Rule 3, C.P.C.
2. The suit was filed on 17-5-2006 and after taking written statement from the defendant side, issues were framed on 23-12-2006. In all, till 20-2-2014, the plaintiff availed fifty two (52) opportunities for production of his evidence and during this period, the statements of four witnesses were got recorded in interval of a considerable gap. On 26-9-2009, the statement of P.W.1 was recorded, on
9-2-2010 the statement of P.W.2 and after one year on 23-2-2011, P.W.3 appeared and got recorded his statement and lastly on 3-12-2011, the statement of P.W.4 was recorded. During this period, once the suit was dismissed for non-prosecution on 18-5-2010, which was restored on 9-5-2011. Fifty two opportunities provided for production of evidence includes a number of last and final opportunities. 17th February, 2014 was the immediate preceding date to 20th February, 2014, when the provisions of Order XVII, Rule 3, C.P.C., were applied. On 17-2-2014 the Clerks of the counsel for the parties appeared and in absence of any evidence of the plaintiff, a request was made on behalf of the plaintiff for adjournment and the matter was adjourned to 20-2-2014 with a clear understanding that it will be the last opportunity for remaining evidence of the plaintiff.
3. The interim order sheet maintained by the learned trial court reveals that on 20th February, 2014, the case was taken up four times. On first occasion only defendant made his appearance and the matter was kept in waiting. On second call in addition to the defendant, one summoned witness from Muslim Commercial Bank made his appearance and for the reason that from the plaintiff side none entered appearance, again the case was kept in waiting. On third call, neither the plaintiff nor any witness appeared and when lastly at 3:30 p.m. on the same date the case was called, plaintiff appeared without any evidence. The plaintiff informed that even the summoned witness had left the premises of the court. Since it was the last opportunity provided to the plaintiff for production of remaining evidence, therefore, in case of failure on his part to comply with such directions, the order impugned herein was passed.
4. In support of the petition, the learned counsel for the petitioner has argued that the local Bar of District Sargodha was observing strike on 20th February, 2014 and, therefore, on account of non-appearance of the learned counsel for the plaintiff, no effective proceedings could have been taken and premium of that strike must be provided to the defaulting plaintiff and penal provisions of Order XVII, Rule 3, C.P.C. should not have been applied. Further contended that when summoned witness appeared before the court, it was the duty of the court to compel the said witness to get his statement recorded and even in case of failure of the plaintiff or his learned counsel to appear, the Presiding Officer of the court himself should manage the recording of evidence of said witness. The learned counsel for the petitioner, in support of his contentions, has placed reliance on "Amanullah v. Haq Nawaz and 3 others" (2013 CLC 1152), "Muhammad Aslam v. Nazir Ahmed" (2008 SCMR 942), "Shambilid Ghori and another v. Mst. Tayyaba Begum" (PLD 1989 Lahore 478). In Amanullah's case (referred above), the strike of Bar during the period from 2007 to 2009 was taken as a valid ground for non-appearance of the learned counsel for the parties and the penal action taken by the courts below during such period was held not to be justified, whereas, in the case of Muhammad Aslam (Supra) it was held that the word "forth-with" means without any further adjournment yet it cannot be equated with the words "at once pronounce the judgment" whereas in case of Shambilid Ghori and another (cited above) a general principle has been reiterated that "no party is to suffered for any act/omission of the Court". A single Bench of Peshawar High Court in Amanullah's case has held in a matter, wherein during the days falling in between 2007 to 2009, a trial court applied penal provision of Order XVII Rule 3 C.P.C as under:--
"As far as the period from March, 2007 till the impugned order dated 26-8-2008 was passed, the petitioner/plaintiff cannot solely be held liable for the non-production of his evidence as well as his learned counsel before the learned trial Judge. It is by now part of our history that when a tyrannical regime struck at the superior judiciary firstly in the month of March, 2007 and then on 3rd November, 2007 when emergency was imposed, the entire lawyers' community of the country went on one strike after another. During those days, invariably all the courts of the country wore a deserted look and the same continued till the lifting of the emergency and the restoration of the honourable judges of the honourble Superior Courts to their respective offices in a respectable manner."
No doubt the era from 2007 to 2009 was an extra-ordinary period and whole of the legal fraternity including Bench and Bar were committed for one noble cause i.e. the restoration of independence of Judiciary and release of Hon'ble Senior Judges, however, after once that goal is achieved, every one, the Lawyers and the Judges went back to their original and actual position and started playing their respective role in process of dispensation of justice. However, it is a matter of common practice that we are being experienced strikes of Bar on one pretext or the other even after 2009 and even after the end of dictatorial regime.
5. In the history of Nations, periods full of events are experienced by the Nations and to cope with the extra ordinary situation, it was to be confronted with the Nation or a particular part of the Nation, every segment of society in general and the directly concerned persons, in particular, are expected to discontinue their normal routine of life and to provide energy and strength to the cause with which whole of the Nation at the relevant time is being confronted.
6. Our father of Nation "Quaid-a-Azam Muhammad Ali Jinnah" during crucial period of "Pakistan Movement" even demanded and allowed the students of Ali Garh Muslim University and Islamia College Peshawar to discontinue their process of education and to spread over in far-flung areas of undivided Sub-continent to mobilize the masses for creation of Pakistan, but once the noble goal of creation of Pakistan was achieved, it was the same Quaid-a-Azam, who directed the students to go back to their Educational Institutions and to devote their whole attention to get education as the politics and political activities were not part of their educational activities.
7. Similarly, once the dictator goes and our Judiciary has gained its earlier position of independent judiciary and the Hon'ble Judges in superior Judiciary got back to their respective position then for the both, Bench and Bar, it was high-time to revert back to their noble cause to contribute in the process of dispensation of justice. The young blood entered in the Bar during the period of such emergency in fact opened the eyes in agitation and strikes as the overall complexion of the Bar has been converted into some what militant Bar. To such young inductees in the Bar, it would be a difficult job to ask them to pay more attention to academics than to put their more energies towards agitation.
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' ( ). It is an Arabic word and in '( ) by " " published by " " the meanings of word " " have been provided as follows:-
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.
13. In the case in hand, the learned counsel for the petitioner in support of his contention that on 20th February, 2014, the Bar was observing strike has placed on record a copy of notice issued by Secretary, District Bar Association, Sargodha, which indicates that call of the Bar was to observe strike on 20th February, 2014 after 11:00 a.m. The courts in Punjab during those days started their working at 08:00 a.m. Had the plaintiff been sincere in getting the statement of his witness/witnesses recorded by availing the last opportunity provided in that regard, he would have ample opportunity from 08:00 a.m. to 11:00 a.m. to accomplish his job, but the call of strike had been taken as a cover for non-appearance of the learned counsel during whole of the day and thus, the learned trial court was left with no option but to exercise the jurisdiction vested with it under the provisions of Order XVII Rule 3 C.P.C., which has rightly been exercised.
14. The learned counsel for the petitioner has failed to point out any illegality or irregularity in the impugned order and thus no exception is possible to the same.
15. This petition having no force is dismissed.
AG/S-105/L Revision dismissed.
[Lahore]
Before Ibad-ur-Rehman Lodhi, J
Ch. SHAMSHAIR ALI---Petitioner
Versus
KHALID MAHMOOD---Respondent
Civil Revision No.1648 of 2014, decided on 9th May, 2014.
(a) Civil Procedure Code (V of 1908)---
----O.XVII, R.3---Legal practitioners and Bar Councils Act (XXXV of 1973), S.56---Pakistan Legal Practitioners and Bar Councils Rules, 1976, Rr. 134 & 166---Closure of evidence---Strike by District Bar after 11-00 a.m.---Scope---Right to produce remaining evidence of plaintiff was closed after granting fifty two opportunities for the same---Contention of plaintiff was that District Bar was observing strike and no effective proceedings could have been taken and provisions of O.XVII, R.3, C.P.C. could not be applied---Validity---Party to a proceedings who had been held responsible to perform certain acts would be liable to be penalized in case of default on the part of such party---Court might proceed to decide the suit forthwith where party to a suit to whom time had been granted had failed to produce his evidence notwithstanding such default---Call of strike was taken as a cover---Counsel was bound to appear in the court when a matter was called and if same was not so possible then to make satisfactory alternative arrangements---Counsel was bound to act without fear or favour for just cause of clients diligently---Counsel could not escape from proceedings before a Court of law---No illegality or irregularity had been pointed out in the impugned order---Revision was dismissed in circum-stances.
Amanullah v. Haq Nawaz and 3 others 2013 CLC 1152; Muhammad Aslam v. Nazir Ahmed 2008 SCMR 942 and Shambilid Ghori and another v. Mst. Tayyaba Begum PLD 1989 Lah. 478 ref.
(b) Words and Phrases---
----"Vakeel"---Meaning.
Tahir Mahmood Khokhar for Petitioner.
ORDER
IBAD-UR-REHMAN LODHI, J.---By means of this Civil Revision Petition, the petitioner has assailed the findings of the learned trial court arrived at on 20-2-2014, whereby the right to produce remaining evidence of the plaintiff/present petitioner was closed by invoking the penal provisions of Order XVII, Rule 3, C.P.C.
2. The suit was filed on 17-5-2006 and after taking written statement from the defendant side, issues were framed on 23-12-2006. In all, till 20-2-2014, the plaintiff availed fifty two (52) opportunities for production of his evidence and during this period, the statements of four witnesses were got recorded in interval of a considerable gap. On 26-9-2009, the statement of P.W.1 was recorded, on
9-2-2010 the statement of P.W.2 and after one year on 23-2-2011, P.W.3 appeared and got recorded his statement and lastly on 3-12-2011, the statement of P.W.4 was recorded. During this period, once the suit was dismissed for non-prosecution on 18-5-2010, which was restored on 9-5-2011. Fifty two opportunities provided for production of evidence includes a number of last and final opportunities. 17th February, 2014 was the immediate preceding date to 20th February, 2014, when the provisions of Order XVII, Rule 3, C.P.C., were applied. On 17-2-2014 the Clerks of the counsel for the parties appeared and in absence of any evidence of the plaintiff, a request was made on behalf of the plaintiff for adjournment and the matter was adjourned to 20-2-2014 with a clear understanding that it will be the last opportunity for remaining evidence of the plaintiff.
3. The interim order sheet maintained by the learned trial court reveals that on 20th February, 2014, the case was taken up four times. On first occasion only defendant made his appearance and the matter was kept in waiting. On second call in addition to the defendant, one summoned witness from Muslim Commercial Bank made his appearance and for the reason that from the plaintiff side none entered appearance, again the case was kept in waiting. On third call, neither the plaintiff nor any witness appeared and when lastly at 3:30 p.m. on the same date the case was called, plaintiff appeared without any evidence. The plaintiff informed that even the summoned witness had left the premises of the court. Since it was the last opportunity provided to the plaintiff for production of remaining evidence, therefore, in case of failure on his part to comply with such directions, the order impugned herein was passed.
4. In support of the petition, the learned counsel for the petitioner has argued that the local Bar of District Sargodha was observing strike on 20th February, 2014 and, therefore, on account of non-appearance of the learned counsel for the plaintiff, no effective proceedings could have been taken and premium of that strike must be provided to the defaulting plaintiff and penal provisions of Order XVII, Rule 3, C.P.C. should not have been applied. Further contended that when summoned witness appeared before the court, it was the duty of the court to compel the said witness to get his statement recorded and even in case of failure of the plaintiff or his learned counsel to appear, the Presiding Officer of the court himself should manage the recording of evidence of said witness. The learned counsel for the petitioner, in support of his contentions, has placed reliance on "Amanullah v. Haq Nawaz and 3 others" (2013 CLC 1152), "Muhammad Aslam v. Nazir Ahmed" (2008 SCMR 942), "Shambilid Ghori and another v. Mst. Tayyaba Begum" (PLD 1989 Lahore 478). In Amanullah's case (referred above), the strike of Bar during the period from 2007 to 2009 was taken as a valid ground for non-appearance of the learned counsel for the parties and the penal action taken by the courts below during such period was held not to be justified, whereas, in the case of Muhammad Aslam (Supra) it was held that the word "forth-with" means without any further adjournment yet it cannot be equated with the words "at once pronounce the judgment" whereas in case of Shambilid Ghori and another (cited above) a general principle has been reiterated that "no party is to suffered for any act/omission of the Court". A single Bench of Peshawar High Court in Amanullah's case has held in a matter, wherein during the days falling in between 2007 to 2009, a trial court applied penal provision of Order XVII Rule 3 C.P.C as under:--
"As far as the period from March, 2007 till the impugned order dated 26-8-2008 was passed, the petitioner/plaintiff cannot solely be held liable for the non-production of his evidence as well as his learned counsel before the learned trial Judge. It is by now part of our history that when a tyrannical regime struck at the superior judiciary firstly in the month of March, 2007 and then on 3rd November, 2007 when emergency was imposed, the entire lawyers' community of the country went on one strike after another. During those days, invariably all the courts of the country wore a deserted look and the same continued till the lifting of the emergency and the restoration of the honourable judges of the honourble Superior Courts to their respective offices in a respectable manner."
No doubt the era from 2007 to 2009 was an extra-ordinary period and whole of the legal fraternity including Bench and Bar were committed for one noble cause i.e. the restoration of independence of Judiciary and release of Hon'ble Senior Judges, however, after once that goal is achieved, every one, the Lawyers and the Judges went back to their original and actual position and started playing their respective role in process of dispensation of justice. However, it is a matter of common practice that we are being experienced strikes of Bar on one pretext or the other even after 2009 and even after the end of dictatorial regime.
5. In the history of Nations, periods full of events are experienced by the Nations and to cope with the extra ordinary situation, it was to be confronted with the Nation or a particular part of the Nation, every segment of society in general and the directly concerned persons, in particular, are expected to discontinue their normal routine of life and to provide energy and strength to the cause with which whole of the Nation at the relevant time is being confronted.
6. Our father of Nation "Quaid-a-Azam Muhammad Ali Jinnah" during crucial period of "Pakistan Movement" even demanded and allowed the students of Ali Garh Muslim University and Islamia College Peshawar to discontinue their process of education and to spread over in far-flung areas of undivided Sub-continent to mobilize the masses for creation of Pakistan, but once the noble goal of creation of Pakistan was achieved, it was the same Quaid-a-Azam, who directed the students to go back to their Educational Institutions and to devote their whole attention to get education as the politics and political activities were not part of their educational activities.
7. Similarly, once the dictator goes and our Judiciary has gained its earlier position of independent judiciary and the Hon'ble Judges in superior Judiciary got back to their respective position then for the both, Bench and Bar, it was high-time to revert back to their noble cause to contribute in the process of dispensation of justice. The young blood entered in the Bar during the period of such emergency in fact opened the eyes in agitation and strikes as the overall complexion of the Bar has been converted into some what militant Bar. To such young inductees in the Bar, it would be a difficult job to ask them to pay more attention to academics than to put their more energies towards agitation.
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' ( ). It is an Arabic word and in '( ) by " " published by " " the meanings of word " " have been provided as follows:-
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.
13. In the case in hand, the learned counsel for the petitioner in support of his contention that on 20th February, 2014, the Bar was observing strike has placed on record a copy of notice issued by Secretary, District Bar Association, Sargodha, which indicates that call of the Bar was to observe strike on 20th February, 2014 after 11:00 a.m. The courts in Punjab during those days started their working at 08:00 a.m. Had the plaintiff been sincere in getting the statement of his witness/witnesses recorded by availing the last opportunity provided in that regard, he would have ample opportunity from 08:00 a.m. to 11:00 a.m. to accomplish his job, but the call of strike had been taken as a cover for non-appearance of the learned counsel during whole of the day and thus, the learned trial court was left with no option but to exercise the jurisdiction vested with it under the provisions of Order XVII Rule 3 C.P.C., which has rightly been exercised.
14. The learned counsel for the petitioner has failed to point out any illegality or irregularity in the impugned order and thus no exception is possible to the same.
15. This petition having no force is dismissed.
AG/S-105/L Revision dismissed.
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