2016 C L C 682
2016 C L C 682
[Peshawar]
Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ
Mian MUJAHID ULLAH----Petitioner
Versus
SABIR ALI and 2 others----Respondents
Regular First Appeal No.13-P of 2014, decided on 22nd October, 2015.
Civil Procedure Code (V of 1908)---
----O. XVII, R. 3---Adjournments---Production of evidence---Scope---Suit of plaintiff was dismissed by Trial Court under O.XVII, R.3, C.P.C.---Validity---Despite many opportunities provided to plaintiff for recording of evidence, he failed to produce his witnesses---Plaintiff on several occasions, was warned with caution notice to comply with the court order and to produce evidence but plaintiff paid no heed to directions of court, thus, lastly he was proceeded under O.XVII, R.3, C.P.C. and on his failure to produce his remaining evidence, Trial Court closed the evidence and dismissed the suit for no evidence---Perusal of record would reveal that Trial Court had shown a lot of clemency in providing opportunities to plaintiff to do the needful and similarly plaintiff had abused the process of law to its maximum and choking the legal process of court for long two years---Order passed by trial Court did not warrant any interference in circumstances---Appeal was dismissed accordingly.
Umar Zafran for Petitioner.
Rab Nawaz Khan, Addl. A.G. along with Dr. Khalid Khan for Respondent No.2.
Date of hearing: 22nd October, 2015.
JUDGMENT
ROOH-UL-AMIN KHAN, J.--- Through the instant appeal, appellant Mian Mujahid Ullah, Chief Executive ZUASA Pharma ( herein after referred to as the Appellant) has assailed the judgment and decree dated 21.10.2013 passed by learned Civil Judge-V, Peshawar whereby suit bearing No. 219/1 filed by the appellant, for recovery, on account of damages was dismissed under Order XVII Rule 3, Civil Procedure Code, 1908.
2. On 15.11.2010, the appellant instituted a suit against the respondents for recovery of Rs.50/- Million as compensation on account of malicious prosecution, damages and mental torture caused to him by the respondent, wherein he averred that the appellant dealing in the business of herbal medicine under the name and style of ZUASA Pharma. The respondents by taking samples from the manufactured herbal products and after testing the same from laboratory, booked him in several cases due to which he suffered a lot of mental torture as well loss in business and personal reputation. The respondents Nos.1 and 2 being members of the Provincial Quality Control Board, Khyber Pakhtunkhwa through their personal influence dragged the petitioner into drug Court. Similarly on 18.9.2002 the respondents No.3 collected a sample of Hemobin Natural Restorative of hemoglobin manufactured by the firm of appellant, from Kashif Medical Store, however, after going through the protracted agonies of trial, the appellant was acquitted from the charges. Hence the appellant was compelled to file a suit for the above mentioned relief. The respondents were summoned who filed their written statement wherein the allegations were denied with additions that the samples were taken from certain herbal products of the appellant and tested from the laboratory, wherein it was found that the appellant used to manufacture the herbal products from the allopathy drugs i.e. Ferrous Sulphate and Vitamin-C which require proper registration under the law. No doubt the appellant was acquitted by the trial Court but his co-accused namely Zafar Ali and Muhammad Khan, pleaded guilty and were convicted and sentenced by the Drug Court, vide judgment dated 6.3.2007.
4.(sic) From divergent pleadings of the parties, the required issues were framed by the trial Court and the appellant was asked to produce his evidence. On failure he was cautioned through notice under Order XVII, Rule 3 Civil Procedure Code, 1908, but in vain, thus by invoking penal provisions of above cited Rule, the suit was dismissed vide impugned judgment dated 21.10.2013, hence this appeal.
5. Learned counsel for the appellant and respondent No.2 were heard at length and record perused vigilantly with their assistance.
6. It is worth mentioning here that after framing of issues the appellant was invited by the trial Court to lead evidence but in spite of numerous opportunities he could not complied with the Court order, therefore, on 16.11.2012 he was served with a caution notice under Order XVII, Rule 3 Civil Procedure Code, 1908 to produce his entire evidence on 27.11.2012, but in vain. On the date fixed, the notice under Order XVII, Rule 3 Civil Procedure Code, 1908 was repeated and appellant was given last chance to produce his evidence, thus the case was posted for 10.12.2012. On the above cited date the appellate recorded his partial statement and thereafter on three consecutive dates of hearing i.e.10.01.2013, 19.01.2013, 28.01.2013, the appellant did not record his remaining statement by playing hide and seek with the Court. On each date he was warned to produce his remaining evidence but of no avail. In the meantime, to frustrate the orders of the trial Court, the appellant submitted an application before the trial Court for summoning the Moharrar of Police Station Faqir Abad for production of FIR No. 684 dated 2.9.1991 and FIR No. 227 dated 26.2.1992 which was contested by the respondents and ultimately dismissed on 26.2.2013, while the case was posted for 12.3.2013 for recorded remaining statement of the appellant. Again on 12.3.2013, 28.3.2013 and on 6.4.2013 last chance was given to the appellant to produce evidence and ultimately on his failure notice under Order XVII, Rule 3 Civil Procedure Code, 1908 was repeated on 24.4.2013 and the case was adjourned to 14.5.2013 but due to pre-occupation of learned presiding Officer was busy in election duty therefore, the case was adjourned to 8.6.2013 and on the same date the notice under Order XVII, Rule 3 Civil Procedure Code, 1908 was again repeated. On 14.6.2013 the appellant recorded his remaining statement as PW-4. On 21.6.2014 he was again warned to produce the remaining evidence. On 5.9.2013, 7.9.2013 the warning was repeated but without any positive response from the appellant side, hence on 8.10.2013 he was again cautioned under Order XVII Rule 3 Civil Procedure Code, 1908 to produce his entire evidence, but once again endeavor to frustrate the proceedings, he on 9.10.2013 appeared to be cross-examined by defendant. Simultaneously he filed an application before the District Judge, for transfer of the case from the trial Court to another Court of Civil Judge, which was allowed and the case was transferred from the Court of worthy Civil Judge, Peshawar (Ijaz Younas) to the Court Muhammad Irfan learned Civil Judge, Peshawar where the case was entered in the relevant register and the appellant was again served with a notice under Order XVII, Rule 3 Civil Procedure Code, 1908 for producing his evidence on 21.10.2013. On the date fixed i.e. 21.10.2013, the appellant failed to do the needful, which resulted into the impugned order of dismissal of suit.
7. From the above referred to chequered history of the case it is manifest that the needful could not be done and ultimately the suit of appellant was dismissed in view of provisions contemplated under Order XVII, Rule 3 Civil Procedure Code, 1908. It is reflective from the record that in spite of numerous opportunities given on various occasions, the appellant failed to produce evidence to substantiate his claim. Having consulting the record, most particularly the order sheets and different frivolous type applications, we entertain no doubt in our mind that it is a case where the process of law has been abused by the appellant to its maximum. It was also brought into notice of the Court that the appellant had instituted a similar suit against the respondent No.1 and others for recovery of Rs.70 Millions as compensation for malicious prosecution, social and financial damages and mental and physical torture caused by the then defendants, which had been dismissed by the learned Civil Judge-XXII, Peshawar vide judgment dated 24.9.2014. As observed above, despite many opportunities provided to the appellant for recording of evidence he failed to produce his witnesses. On several occasions, he was warned with a caution notice to comply with the Court order and to produce evidence but the appellant paid no heed to the directions of the Court, thus, lastly he was proceeded under Order XVII, Rule 3 Civil Procedure Code, 1908 and on his failure to produce his remaining evidence, the learned trial Court closed the evidence and dismissed the suit for no evidence. Perusal of record would reveal that the learned trial Court has shown a lot of clemency in providing opportunities to the appellant to do the needful. Similarly the appellant has left no stone unturned in abusing the process of law to its maximum choking the legal process of the Court for long two years. In such an eventuality the order passed by the learned trial Court under Order XVII, Rule 3, Civil Procedure Code, 1908 does not warrant any interference. Resultantly, the instant appeal being devoid of merit, is dismissed.
RR/481/P Appeal dismissed.
[Peshawar]
Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ
Mian MUJAHID ULLAH----Petitioner
Versus
SABIR ALI and 2 others----Respondents
Regular First Appeal No.13-P of 2014, decided on 22nd October, 2015.
Civil Procedure Code (V of 1908)---
----O. XVII, R. 3---Adjournments---Production of evidence---Scope---Suit of plaintiff was dismissed by Trial Court under O.XVII, R.3, C.P.C.---Validity---Despite many opportunities provided to plaintiff for recording of evidence, he failed to produce his witnesses---Plaintiff on several occasions, was warned with caution notice to comply with the court order and to produce evidence but plaintiff paid no heed to directions of court, thus, lastly he was proceeded under O.XVII, R.3, C.P.C. and on his failure to produce his remaining evidence, Trial Court closed the evidence and dismissed the suit for no evidence---Perusal of record would reveal that Trial Court had shown a lot of clemency in providing opportunities to plaintiff to do the needful and similarly plaintiff had abused the process of law to its maximum and choking the legal process of court for long two years---Order passed by trial Court did not warrant any interference in circumstances---Appeal was dismissed accordingly.
Umar Zafran for Petitioner.
Rab Nawaz Khan, Addl. A.G. along with Dr. Khalid Khan for Respondent No.2.
Date of hearing: 22nd October, 2015.
JUDGMENT
ROOH-UL-AMIN KHAN, J.--- Through the instant appeal, appellant Mian Mujahid Ullah, Chief Executive ZUASA Pharma ( herein after referred to as the Appellant) has assailed the judgment and decree dated 21.10.2013 passed by learned Civil Judge-V, Peshawar whereby suit bearing No. 219/1 filed by the appellant, for recovery, on account of damages was dismissed under Order XVII Rule 3, Civil Procedure Code, 1908.
2. On 15.11.2010, the appellant instituted a suit against the respondents for recovery of Rs.50/- Million as compensation on account of malicious prosecution, damages and mental torture caused to him by the respondent, wherein he averred that the appellant dealing in the business of herbal medicine under the name and style of ZUASA Pharma. The respondents by taking samples from the manufactured herbal products and after testing the same from laboratory, booked him in several cases due to which he suffered a lot of mental torture as well loss in business and personal reputation. The respondents Nos.1 and 2 being members of the Provincial Quality Control Board, Khyber Pakhtunkhwa through their personal influence dragged the petitioner into drug Court. Similarly on 18.9.2002 the respondents No.3 collected a sample of Hemobin Natural Restorative of hemoglobin manufactured by the firm of appellant, from Kashif Medical Store, however, after going through the protracted agonies of trial, the appellant was acquitted from the charges. Hence the appellant was compelled to file a suit for the above mentioned relief. The respondents were summoned who filed their written statement wherein the allegations were denied with additions that the samples were taken from certain herbal products of the appellant and tested from the laboratory, wherein it was found that the appellant used to manufacture the herbal products from the allopathy drugs i.e. Ferrous Sulphate and Vitamin-C which require proper registration under the law. No doubt the appellant was acquitted by the trial Court but his co-accused namely Zafar Ali and Muhammad Khan, pleaded guilty and were convicted and sentenced by the Drug Court, vide judgment dated 6.3.2007.
4.(sic) From divergent pleadings of the parties, the required issues were framed by the trial Court and the appellant was asked to produce his evidence. On failure he was cautioned through notice under Order XVII, Rule 3 Civil Procedure Code, 1908, but in vain, thus by invoking penal provisions of above cited Rule, the suit was dismissed vide impugned judgment dated 21.10.2013, hence this appeal.
5. Learned counsel for the appellant and respondent No.2 were heard at length and record perused vigilantly with their assistance.
6. It is worth mentioning here that after framing of issues the appellant was invited by the trial Court to lead evidence but in spite of numerous opportunities he could not complied with the Court order, therefore, on 16.11.2012 he was served with a caution notice under Order XVII, Rule 3 Civil Procedure Code, 1908 to produce his entire evidence on 27.11.2012, but in vain. On the date fixed, the notice under Order XVII, Rule 3 Civil Procedure Code, 1908 was repeated and appellant was given last chance to produce his evidence, thus the case was posted for 10.12.2012. On the above cited date the appellate recorded his partial statement and thereafter on three consecutive dates of hearing i.e.10.01.2013, 19.01.2013, 28.01.2013, the appellant did not record his remaining statement by playing hide and seek with the Court. On each date he was warned to produce his remaining evidence but of no avail. In the meantime, to frustrate the orders of the trial Court, the appellant submitted an application before the trial Court for summoning the Moharrar of Police Station Faqir Abad for production of FIR No. 684 dated 2.9.1991 and FIR No. 227 dated 26.2.1992 which was contested by the respondents and ultimately dismissed on 26.2.2013, while the case was posted for 12.3.2013 for recorded remaining statement of the appellant. Again on 12.3.2013, 28.3.2013 and on 6.4.2013 last chance was given to the appellant to produce evidence and ultimately on his failure notice under Order XVII, Rule 3 Civil Procedure Code, 1908 was repeated on 24.4.2013 and the case was adjourned to 14.5.2013 but due to pre-occupation of learned presiding Officer was busy in election duty therefore, the case was adjourned to 8.6.2013 and on the same date the notice under Order XVII, Rule 3 Civil Procedure Code, 1908 was again repeated. On 14.6.2013 the appellant recorded his remaining statement as PW-4. On 21.6.2014 he was again warned to produce the remaining evidence. On 5.9.2013, 7.9.2013 the warning was repeated but without any positive response from the appellant side, hence on 8.10.2013 he was again cautioned under Order XVII Rule 3 Civil Procedure Code, 1908 to produce his entire evidence, but once again endeavor to frustrate the proceedings, he on 9.10.2013 appeared to be cross-examined by defendant. Simultaneously he filed an application before the District Judge, for transfer of the case from the trial Court to another Court of Civil Judge, which was allowed and the case was transferred from the Court of worthy Civil Judge, Peshawar (Ijaz Younas) to the Court Muhammad Irfan learned Civil Judge, Peshawar where the case was entered in the relevant register and the appellant was again served with a notice under Order XVII, Rule 3 Civil Procedure Code, 1908 for producing his evidence on 21.10.2013. On the date fixed i.e. 21.10.2013, the appellant failed to do the needful, which resulted into the impugned order of dismissal of suit.
7. From the above referred to chequered history of the case it is manifest that the needful could not be done and ultimately the suit of appellant was dismissed in view of provisions contemplated under Order XVII, Rule 3 Civil Procedure Code, 1908. It is reflective from the record that in spite of numerous opportunities given on various occasions, the appellant failed to produce evidence to substantiate his claim. Having consulting the record, most particularly the order sheets and different frivolous type applications, we entertain no doubt in our mind that it is a case where the process of law has been abused by the appellant to its maximum. It was also brought into notice of the Court that the appellant had instituted a similar suit against the respondent No.1 and others for recovery of Rs.70 Millions as compensation for malicious prosecution, social and financial damages and mental and physical torture caused by the then defendants, which had been dismissed by the learned Civil Judge-XXII, Peshawar vide judgment dated 24.9.2014. As observed above, despite many opportunities provided to the appellant for recording of evidence he failed to produce his witnesses. On several occasions, he was warned with a caution notice to comply with the Court order and to produce evidence but the appellant paid no heed to the directions of the Court, thus, lastly he was proceeded under Order XVII, Rule 3 Civil Procedure Code, 1908 and on his failure to produce his remaining evidence, the learned trial Court closed the evidence and dismissed the suit for no evidence. Perusal of record would reveal that the learned trial Court has shown a lot of clemency in providing opportunities to the appellant to do the needful. Similarly the appellant has left no stone unturned in abusing the process of law to its maximum choking the legal process of the Court for long two years. In such an eventuality the order passed by the learned trial Court under Order XVII, Rule 3, Civil Procedure Code, 1908 does not warrant any interference. Resultantly, the instant appeal being devoid of merit, is dismissed.
RR/481/P Appeal dismissed.
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