P L D 2016 Lahore 610
P L D 2016 Lahore 610
Before Mahmood Ahmad Bhatti, J
Haji MUHAMMAD ABBAS---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE and others---Respondents
C.R. No.1461 of 2015, heard on 30th June, 2015.
(a) Civil Procedure Code (V of 1908)---
----O. XXXVII, R.1---Money suit based on negotiable instrument---Summary procedure---Nature and scope---Trial Court was to conduct proceedings within framework of O. XXXII, C.P.C. which in many respects stood apart from rest of C.P.C. and such proceedings conducted thereunder were to be allowed to move at a snail's pace and treated like one's in a regular suit then the same would defeat very purpose of Legislature in enacting O. XXXVII, C.P.C.
(b) Constitution of Pakistan---
----Art. 14---Civil Procedure Code (V of 1908), O.XVII, R.3---Adjournments---Constitutional guarantee of dignity of person---Scope---Witnesses of plaintiff were made to wait for all day long only to be returned and issues were framed on 3-1-2013---While evidence for plaintiff was not allowed to be recorded until 28-4-2014---Thirty dates were fixed between for recording of evidence and barring a few dates, witnesses for plaintiff remained in attendance and furthermore, even after recording of witnesses of plaintiff on 28-4-2014, they had to show up on 16 more dates so as to present themselves for cross-examination---High Court observed that such a case could be curtain raiser and it threw light on environment in which subordinate courts were functioning---Presiding officers were made to play ball with counsel and to conduct proceedings of a case at their convenience and no one came to rescue the witnesses and nobody paid heed to their discomfort while they had to spend all day long standing outside courts---Dignity of man guaranteed in Art. 14 of Constitution in such cases had been reduced to a farce.
Indus Steel Pipes (Public) Limited through Managing Director v. Khalid Enterprises through Sole Owner and Proprietor 2003 YLR 2551; Muhammad Javed and another v. The State and another 2006 PCr.LJ 1170 and Nadeem Ahmed v. Altaf Hussain and others 2014 MLD 921 ref.
Haji Muhammad Tayyab v. Muhammad Sharif Mali, Dy. Superintendent Customs Intelligence and another 1996 SCMR 1967 rel.
(c) Counsel and client---
----Contention of petitioner was that he was not to be penalized for conduct of his counsel---Held, that it was the petitioner who engaged counsel of his choice and he had ample opportunities to change the counsel---Fact that petitioner retained him as his counsel up to the last moment goes a long way to show confidence in such counsel---High Court observed that in such circumstances petitioner had to bear responsibility for acts and omissions of his counsel and he could not turn around to distance himself from questionable conduct of his counsel. [p. 616] C
(d) Civil Procedure Code (V of 1908)---
----S. 114---Review---Scope---Scope for review for an order/judgment was narrow and such scope of review was well-settled.
Ghulam Murtaza v. Abdul Salam Shah and others 2010 SCMR 1883, Abdul Majeed and another v. Chief Settlement Commissioner and others 1980 SCMR 504; Mst. Kalsoom Malik and others v. Assistant Commissioner and others 1996 SCMR 710; Noor Hassan Awan v. Muhammad Ashraf 2001 SCMR 367; Ayyaz Baig alias Bau Chuhanwala v. The State 2002 SCMR 380, Messrs Pakistan International Airlines Karachi v. Inayat Rasool 2004 SCMR 1737; Sh. Muhammad Amjad v. The State PLD 2004 SC 32; Syed Wajhul Hassan Zaidi v. Government of the Punjab and others PLD 2004 SC 801; Habib ul Haque alias Ajar v. Umer Gul through L.Rs. and others 2009 SCMR 335; Mst. Kabir un Nisa and another v. Settlement Commissioner Lands, Lahore and 3 others 1975 SCMR 493; Abdul Ghaffar Abdul Rehman and others v. Asqhar Ali and others PLD 1998 SC 363; Mian Rafique Saigol and another v. Bank of Credit and Commerce International (overseas) Ltd and another PLD 1997 SC 865; Begum Nusrat Ali Gonda v. Federation of Pakistan and others PLD 2013 SC 829 and Haji Muhammad Zaman Khan v. Member Board of Revenue Punjab and others 2014 SCMR 164 rel.
Arshad Farooq for Petitioner.
Respondent No.2 proceeded ex parte.
Date of hearing: 30th June, 2015.
JUDGMENT
MAHMOOD AHMAD BHATTI, J: This revision petition is directed against the orders dated 01.04.2015 and 05.05.2015 passed by an Additional District Judge, Faisalabad, whereby in a suit for the recovery of ten million rupees instituted under Order XXXVII C.P.C., the right of the petitioner/defendant to cross-examine the witnesses produced by plaintiff/ respondent No.2 was closed and a review petition filed thereagainst was also dismissed.
2. The facts, in brief, are that Sitara Chemical Industry, respondent No.2 instituted a suit for the recovery of Rs.1,00,00,000/-, averring therein that Haji Muhammad Abbas, the petitioner herein made out, issued and handed over two cheqpes Nos.36246823 and 36246824 for an amount of Rs.50,00,000/- each to it to be drawn on Muslim Commercial Bank, Peoples Colony Branch, Faisalabad. When these cheques were presented for encashment, they turned out to be dud ones and were dishonoured, obliging respondent No.2 herein to institute the suit for the recovery of an amount of Rs.1,00,00,000/-.
3. The petitioner/defendant entered appearance and filed an application for leave to defend the suit. With the concurrence of the learned counsel for the plaintiff, the same was allowed subject to the defendant's furnishing a surety bond equivalent to the claim made by the plaintiff vide order dated 15.11.2012. At the same time, the petitioner/defendant was required to file written statement, which he did on 08.12.2012. In his written statement, the petitioner/defendant did not deny the issuance of cheques and their delivery to the plaintiff. It was maintained that the parties to the suit deal in chemicals. They made a number of transactions over the years. As for the cheques in question, they were delivered to the plaintiff by way of security and were never intended to be encashed.
4. Giving the divergent pleadings of the parties, the learned trial Court framed the following issues:
ISSUES:
1. Whether Rs.1,00,00,000/- of the plaintiff were outstanding against the defendant as outstanding cost of the chemical and defendant issued post dated two cheques of equal amount of said amount for repayment of said amount? OPP
2. Whether suit has been filed by incompetent person? OPD
3. Whether there was no outstanding amount against the defendant and he issued above mentioned two post dated cheques as guarantee at the time of entering into agreement with the plaintiff? OPD
4. Whether suit is liable to be dismissed under Order VII, Rule 11 C.P.C.? OPD
5. Whether plaintiff is entitled to a decree as prayed for? OPP
6. Relief.
5. The plaintiff produced two witnesses on 20.03.2013. However, they could not be examined because of the lawyers, observing strike. Thereafter, they kept on appearing before the Court without number, but their statements could not be recorded for a variety of reasons. At long last, the evidence of three witnesses for the plaintiff was recorded on 28.04.2014. From then onwards, witnesses had to go through an ordeal and a nightmare. The petitioner/defendant dug his heels in and the witnesses were not cross-examined on one pretext or another. It is of significance that on 15.05.2014, the petitioner was warned that he was being provided with the last opportunity to conduct cross-examination on the witnesses produced by the plaintiff. Then this warning was sounded and reiterated no less than 15 times, but all these warnings fell on deaf ears. Ultimately, the learned trial Court closed the right of the petitioner to cross-examine the witnesses produced by the plaintiff vide order dated 01.04.2015, observing that 16 opportunities were provided to him, but he did not avail of the same. On two occasions, adjournments were granted with costs. The petitioner came up with an application for a review of the aforesaid order dated 01.04.2015. As it is, his application was turned down by the learned trial Court vide order dated 05.05.2015. Hence this revision petition.
6. In support of this petition, learned counsel for the petitioner submits that the two impugned orders passed by the learned Court below are harsh and oppressive; that no penal consequences are provided in Order XVII, Rules 1 and 3, C.P.C., therefore, the valuable right of cross- examination could not be abridged or taken away to the detriment of the rights and interests of the petitioner; that the learned Court pressed ahead with its proceedings in indecent haste; that the petitioner was not to be penalized for the conduct of his counsel. It is lastly argued by him that if the learned counsel for the petitioner evaded his responsibility to carry out cross-examination of the witnesses for the plaintiff, the Court below could have asked the petitioner to make the cross-examination. To fortify his submissions, he has placed reliance upon the judgments reported as "Indus Steel Pipes (Public) Limited through Managing Director v. Khalid Enterprises through Sole Owner and Proprietor" (2003 YLR 2551), "Muhammad Javed and another v. The State and another" (2006 PCr.LJ 1170) and "Nadeem Ahmed v. Altaf Hussain and others" (2014 MLD 921).
7. I have heard the learned counsel for the petitioner at considerable length and gone through the record appended to the revision petition.
8. I am unable to agree with the contentions raised by the learned counsel for the petitioner. At the cost of repetition, it is observed that it was not an ordinary suit. The learned Court below was conducting proceedings within the framework of Order XXXVII C.P.C., which in many respects stands apart from the rest of the Civil Procedure Code, 1908. If the proceedings conducted thereunder are to be allowed to move at a snail's pace, and treated like the one in a regular suit, it would defeat the very purpose of the legislature in enacting Order XXXVII. To read the order sheet of this case is a painful experience. The witnesses for the plaintiff were made to wait for all day long only to be returned. The issues were framed on 03.01.2013. Thereafter, the evidence for the plaintiff was not allowed to be recorded until 28.04.2014. In between 30 dates were fixed for the recording of the evidence. Barring a few dates, the witnesses for the plaintiff remained in attendance. Even after the recording of their statements (Examination-in-chief) on 28.04.2014, they had to show up on 16 more dates so as to present themselves for cross- examination. The question is, can such a dispensation of justice deliver the goods or is not the polity heading headlong towards the abyss. This case may be a curtain- raiser. It also throws light on the environment in which the subordinate Courts are functioning. The Presiding Officers are made to play ball with the counsel, and to conduct the proceedings of a case at their convenience. There is no one to come to the rescue of the witnesses. Nobody pays heed to their discomforts. They have to spend all day long standing outside the Courts. The dignity of man guaranteed in Article 14 of the Constitution of Islamic Republic of Pakistan, 1973 has been reduced to a farce.
9. The argument of the learned counsel for the petitioner that the provisions of Order XVII, Rules 1 and 3, C.P.C. were not attracted to the facts and circumstances of the case is unsound, spurious and untenable. The question is, are the Courts to be regulated and controlled by the litigants and their counsel? In the instant case, the learned trial Court kept on exhorting, beseeching, imploring and supplicating both the petitioner and his counsel to carry out cross-examination of the witnesses produced by the plaintiff. If the provisions of Order XVII, Rules 1 and 2 C.P.C. are not intended to meet such a situation, when will they come into play to rescue one party from the excesses of the other party? Besides, every Court is invested with inherent powers to pass any order to secure the ends of justice and to prevent the abuse of law so long as its orders are not in conflict with the express provisions of Civil Procedure Code, 1908. The conduct of the petitioner has not been commendable, if not reproachful. I have no hesitation in holding that the petitioner abused the process of law and did not allow the Court below to conclude the trial, throwing a spanner in the works. In somewhat similar circumstances, the Hon'ble Supreme Court of Pakistan upheld an order of the High Court in the case of "Haji Muhammad Tayyab v. Muhammad Sharif Mali, Dy. Superintendent, Customs Intelligence and another" (1996 SCMR 1967). This short order is worth reproducing, which reads as under:
"2. On 13-8-1987 Haji Muhammad Tayyab, petitioner herein, instituted suit against the respondents claiming a sum of Rs.56,00,000 as damages for malicious prosecution. It appears that the plaintiff- petitioner had concluded his evidence and on 11-12-1990 the examination-in-chief of Raja Abbas Ali defendant was recorded and right to cross-examine him was reserved by the learned duty Civil Judge. The case was adjourned for his cross-examination on 6-4-1991. On 6-4-1991 the case was again adjourned to 9-6-991 for his cross-examination but on that day too the plaintiffs' counsel did not cross-examine the witnesses despite the Court had to wait for that purpose. The case was again adjourned to 10-6-1991 allowing another opportunity to the petitioner's counsel to cross-examine the witnesses but he failed with the result that the learned Civil Judge had to apply the provisions of Order XVII, Rule 3, C.P.C. closing petitioner's right to cross-examine the witnesses as according to him, the petitioner could not be allowed to abuse the process of the Court. The order dated 10-6-1991 was assailed through Civil Revision No.1171/91 which was dismissed by the learned Single Judge of the Lahore High Court vide impugned order referred to above holding as under:-
"Here the order in question was under Order XVII, Rule 3, C.P.C. and in my opinion all the conditions stated in the precedent case so far as relevant were satisfied. The suit had been pending since 13-8-1987. The examination-in-chief of Raja Abbas Ali, defendant was recorded on 11-12-1990 and the suit had then been adjourned from time to time on the request of the plaintiff or his counsel for the plaintiff or his counsel for the cross-examination of the witnesses. In view of the proceedings dated 10-6-1991, I am inclined to agree with the learned Civil Judge that the conduct of the plaintiff amounted to abuse of process of the Court. The suit had been adjourned from 6-4-1991 to 10-6-1991 expressly for the purpose of the cross-examination of the witnesses. In the circumstances there was no obligation in law upon the Court to keep the case pending and to take it up in the later part of the day."
3. After hearing learned counsel for petitioner and going through the file we are satisfied that the learned Single Judge has rightly maintained the order of the Civil Judge whereby the petitioner was not allowed to resort to delaying tactics in disposal of the suit, and his right to cross-examine the witnesses was closed.
In our view, this case hardly calls for interference in the matter. Leave to appeal is; accordingly, refused and this petition dismissed."
10. The argument of the learned counsel for the petitioner that the petitioner was not to be penalized for the conduct of his counsel has not impressed me a wee bit. It was he who engaged the counsel of his choice. He had ample opportunities to change his counsel. The very fact that he retained him as his counsel up to the last moment goes a long way to show his confidence in him. In the circumstances, he has to bear the responsibility for the acts and omissions of his learned counsel. Now, he cannot turn around to distance himself from the questionable conduct of his counsel. He alone is to face the music.
11. The other limb of the argument of the learned counsel for the petitioner that if his counsel was reluctant to make cross-examination, the petitioner was to be asked to carry out cross-examination is answered by the learned Court below in the impugned order dated 01.04.2015 in the following words:
"The PWs are consistently appearing in the Court. Today was the last and final opportunity for the defendant to cross-examine said P.Ws and it was made clear that in case of non-cross-examination, the right of the defendant to cross-examine said P.Ws shall be closed. But the defendant neither availed this opportunity nor produced his counsel for the same. It is against the basic spirit of justice that matter be prolonged for unlimited period".
12. Even otherwise, I have not been able to lay my hands on any application moved by the petitioner to seek permission from the learned Court below to conduct cross-examination on the witnesses for the plaintiff on his own.
13. The order dated 05.05.2015 passed by the learned Court below declining to make a review of its order dated 01.04.2015 cannot be regarded as having been passed without jurisdiction. On the one hand, there is a narrow scope for review of an order/judgment and on the other, no valid grounds were urged for a review. The scope of review is too well-settled to call for further expounding. Suffice it to make reference to the judgments reported as "Ghulam Murtaza v. Abdul Salam Shah and others" (2010 SCMR 1883), "Abdul Majeed and another v. Chief Settlement Commissioner and others" (1980 SCMR 504), "Mst. Kalsoom Malik and others v. Assistant Commissioner and others" (1996 SCMR 710), "Noor Hassan Awan v. Muhammad Ashraf" (2001 SCMR 367), "Ayyaz Baig alias Bau Chuhanwala v. The State (2002 SCMR 380), Messrs Pakistan International Airlines Karachi v. Inayat Rasool" (2004 SCMR 1737), "Sh. Muhammad Amjad v. The State" (PLD 2004 SC 32), "Syed Wajhul Hassan Zaidi Government of the Punjab and others" (PLD 2004 Supreme Court 801), "Habib ul Haque alias Ajar v. Umer Gul through L.Rs. and others" (2009 SCMR 335), "Mst. Kabir un Nisa and another v. Settlement Commissioner Lands, Lahore and 3 others" (1975 SCMR 493), "Abdul Ghaffar Abdul Rehman and others v. Asghar Ali and others" (PLD 1998 Supreme Court 363), "Mian Rafique Saigol and another v. Bank of Credit and Commerce International (overseas) Ltd and another (PLD 1997 Supreme Court 865), "Begum Nusrat All Gonda v. Federation of Pakistan and others" (PLD 2013 SC 829) and "Haji Muhammad Zaman Khan v. Member Board of Revenue Punjab and others" (2014 SCMR 164).
14. The judgments relied upon by the learned counsel for the petitioner are distinguishable. They proceeded on their own facts and have no application to the facts of the instant case.
15. The upshot of the above discussion is that the impugned orders passed by the learned Court below are unexceptionable and call for- no interference with them. This petition being devoid of merits is dismissed.
RR/M-255/L Petition dismissed.
Before Mahmood Ahmad Bhatti, J
Haji MUHAMMAD ABBAS---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE and others---Respondents
C.R. No.1461 of 2015, heard on 30th June, 2015.
(a) Civil Procedure Code (V of 1908)---
----O. XXXVII, R.1---Money suit based on negotiable instrument---Summary procedure---Nature and scope---Trial Court was to conduct proceedings within framework of O. XXXII, C.P.C. which in many respects stood apart from rest of C.P.C. and such proceedings conducted thereunder were to be allowed to move at a snail's pace and treated like one's in a regular suit then the same would defeat very purpose of Legislature in enacting O. XXXVII, C.P.C.
(b) Constitution of Pakistan---
----Art. 14---Civil Procedure Code (V of 1908), O.XVII, R.3---Adjournments---Constitutional guarantee of dignity of person---Scope---Witnesses of plaintiff were made to wait for all day long only to be returned and issues were framed on 3-1-2013---While evidence for plaintiff was not allowed to be recorded until 28-4-2014---Thirty dates were fixed between for recording of evidence and barring a few dates, witnesses for plaintiff remained in attendance and furthermore, even after recording of witnesses of plaintiff on 28-4-2014, they had to show up on 16 more dates so as to present themselves for cross-examination---High Court observed that such a case could be curtain raiser and it threw light on environment in which subordinate courts were functioning---Presiding officers were made to play ball with counsel and to conduct proceedings of a case at their convenience and no one came to rescue the witnesses and nobody paid heed to their discomfort while they had to spend all day long standing outside courts---Dignity of man guaranteed in Art. 14 of Constitution in such cases had been reduced to a farce.
Indus Steel Pipes (Public) Limited through Managing Director v. Khalid Enterprises through Sole Owner and Proprietor 2003 YLR 2551; Muhammad Javed and another v. The State and another 2006 PCr.LJ 1170 and Nadeem Ahmed v. Altaf Hussain and others 2014 MLD 921 ref.
Haji Muhammad Tayyab v. Muhammad Sharif Mali, Dy. Superintendent Customs Intelligence and another 1996 SCMR 1967 rel.
(c) Counsel and client---
----Contention of petitioner was that he was not to be penalized for conduct of his counsel---Held, that it was the petitioner who engaged counsel of his choice and he had ample opportunities to change the counsel---Fact that petitioner retained him as his counsel up to the last moment goes a long way to show confidence in such counsel---High Court observed that in such circumstances petitioner had to bear responsibility for acts and omissions of his counsel and he could not turn around to distance himself from questionable conduct of his counsel. [p. 616] C
(d) Civil Procedure Code (V of 1908)---
----S. 114---Review---Scope---Scope for review for an order/judgment was narrow and such scope of review was well-settled.
Ghulam Murtaza v. Abdul Salam Shah and others 2010 SCMR 1883, Abdul Majeed and another v. Chief Settlement Commissioner and others 1980 SCMR 504; Mst. Kalsoom Malik and others v. Assistant Commissioner and others 1996 SCMR 710; Noor Hassan Awan v. Muhammad Ashraf 2001 SCMR 367; Ayyaz Baig alias Bau Chuhanwala v. The State 2002 SCMR 380, Messrs Pakistan International Airlines Karachi v. Inayat Rasool 2004 SCMR 1737; Sh. Muhammad Amjad v. The State PLD 2004 SC 32; Syed Wajhul Hassan Zaidi v. Government of the Punjab and others PLD 2004 SC 801; Habib ul Haque alias Ajar v. Umer Gul through L.Rs. and others 2009 SCMR 335; Mst. Kabir un Nisa and another v. Settlement Commissioner Lands, Lahore and 3 others 1975 SCMR 493; Abdul Ghaffar Abdul Rehman and others v. Asqhar Ali and others PLD 1998 SC 363; Mian Rafique Saigol and another v. Bank of Credit and Commerce International (overseas) Ltd and another PLD 1997 SC 865; Begum Nusrat Ali Gonda v. Federation of Pakistan and others PLD 2013 SC 829 and Haji Muhammad Zaman Khan v. Member Board of Revenue Punjab and others 2014 SCMR 164 rel.
Arshad Farooq for Petitioner.
Respondent No.2 proceeded ex parte.
Date of hearing: 30th June, 2015.
JUDGMENT
MAHMOOD AHMAD BHATTI, J: This revision petition is directed against the orders dated 01.04.2015 and 05.05.2015 passed by an Additional District Judge, Faisalabad, whereby in a suit for the recovery of ten million rupees instituted under Order XXXVII C.P.C., the right of the petitioner/defendant to cross-examine the witnesses produced by plaintiff/ respondent No.2 was closed and a review petition filed thereagainst was also dismissed.
2. The facts, in brief, are that Sitara Chemical Industry, respondent No.2 instituted a suit for the recovery of Rs.1,00,00,000/-, averring therein that Haji Muhammad Abbas, the petitioner herein made out, issued and handed over two cheqpes Nos.36246823 and 36246824 for an amount of Rs.50,00,000/- each to it to be drawn on Muslim Commercial Bank, Peoples Colony Branch, Faisalabad. When these cheques were presented for encashment, they turned out to be dud ones and were dishonoured, obliging respondent No.2 herein to institute the suit for the recovery of an amount of Rs.1,00,00,000/-.
3. The petitioner/defendant entered appearance and filed an application for leave to defend the suit. With the concurrence of the learned counsel for the plaintiff, the same was allowed subject to the defendant's furnishing a surety bond equivalent to the claim made by the plaintiff vide order dated 15.11.2012. At the same time, the petitioner/defendant was required to file written statement, which he did on 08.12.2012. In his written statement, the petitioner/defendant did not deny the issuance of cheques and their delivery to the plaintiff. It was maintained that the parties to the suit deal in chemicals. They made a number of transactions over the years. As for the cheques in question, they were delivered to the plaintiff by way of security and were never intended to be encashed.
4. Giving the divergent pleadings of the parties, the learned trial Court framed the following issues:
ISSUES:
1. Whether Rs.1,00,00,000/- of the plaintiff were outstanding against the defendant as outstanding cost of the chemical and defendant issued post dated two cheques of equal amount of said amount for repayment of said amount? OPP
2. Whether suit has been filed by incompetent person? OPD
3. Whether there was no outstanding amount against the defendant and he issued above mentioned two post dated cheques as guarantee at the time of entering into agreement with the plaintiff? OPD
4. Whether suit is liable to be dismissed under Order VII, Rule 11 C.P.C.? OPD
5. Whether plaintiff is entitled to a decree as prayed for? OPP
6. Relief.
5. The plaintiff produced two witnesses on 20.03.2013. However, they could not be examined because of the lawyers, observing strike. Thereafter, they kept on appearing before the Court without number, but their statements could not be recorded for a variety of reasons. At long last, the evidence of three witnesses for the plaintiff was recorded on 28.04.2014. From then onwards, witnesses had to go through an ordeal and a nightmare. The petitioner/defendant dug his heels in and the witnesses were not cross-examined on one pretext or another. It is of significance that on 15.05.2014, the petitioner was warned that he was being provided with the last opportunity to conduct cross-examination on the witnesses produced by the plaintiff. Then this warning was sounded and reiterated no less than 15 times, but all these warnings fell on deaf ears. Ultimately, the learned trial Court closed the right of the petitioner to cross-examine the witnesses produced by the plaintiff vide order dated 01.04.2015, observing that 16 opportunities were provided to him, but he did not avail of the same. On two occasions, adjournments were granted with costs. The petitioner came up with an application for a review of the aforesaid order dated 01.04.2015. As it is, his application was turned down by the learned trial Court vide order dated 05.05.2015. Hence this revision petition.
6. In support of this petition, learned counsel for the petitioner submits that the two impugned orders passed by the learned Court below are harsh and oppressive; that no penal consequences are provided in Order XVII, Rules 1 and 3, C.P.C., therefore, the valuable right of cross- examination could not be abridged or taken away to the detriment of the rights and interests of the petitioner; that the learned Court pressed ahead with its proceedings in indecent haste; that the petitioner was not to be penalized for the conduct of his counsel. It is lastly argued by him that if the learned counsel for the petitioner evaded his responsibility to carry out cross-examination of the witnesses for the plaintiff, the Court below could have asked the petitioner to make the cross-examination. To fortify his submissions, he has placed reliance upon the judgments reported as "Indus Steel Pipes (Public) Limited through Managing Director v. Khalid Enterprises through Sole Owner and Proprietor" (2003 YLR 2551), "Muhammad Javed and another v. The State and another" (2006 PCr.LJ 1170) and "Nadeem Ahmed v. Altaf Hussain and others" (2014 MLD 921).
7. I have heard the learned counsel for the petitioner at considerable length and gone through the record appended to the revision petition.
8. I am unable to agree with the contentions raised by the learned counsel for the petitioner. At the cost of repetition, it is observed that it was not an ordinary suit. The learned Court below was conducting proceedings within the framework of Order XXXVII C.P.C., which in many respects stands apart from the rest of the Civil Procedure Code, 1908. If the proceedings conducted thereunder are to be allowed to move at a snail's pace, and treated like the one in a regular suit, it would defeat the very purpose of the legislature in enacting Order XXXVII. To read the order sheet of this case is a painful experience. The witnesses for the plaintiff were made to wait for all day long only to be returned. The issues were framed on 03.01.2013. Thereafter, the evidence for the plaintiff was not allowed to be recorded until 28.04.2014. In between 30 dates were fixed for the recording of the evidence. Barring a few dates, the witnesses for the plaintiff remained in attendance. Even after the recording of their statements (Examination-in-chief) on 28.04.2014, they had to show up on 16 more dates so as to present themselves for cross- examination. The question is, can such a dispensation of justice deliver the goods or is not the polity heading headlong towards the abyss. This case may be a curtain- raiser. It also throws light on the environment in which the subordinate Courts are functioning. The Presiding Officers are made to play ball with the counsel, and to conduct the proceedings of a case at their convenience. There is no one to come to the rescue of the witnesses. Nobody pays heed to their discomforts. They have to spend all day long standing outside the Courts. The dignity of man guaranteed in Article 14 of the Constitution of Islamic Republic of Pakistan, 1973 has been reduced to a farce.
9. The argument of the learned counsel for the petitioner that the provisions of Order XVII, Rules 1 and 3, C.P.C. were not attracted to the facts and circumstances of the case is unsound, spurious and untenable. The question is, are the Courts to be regulated and controlled by the litigants and their counsel? In the instant case, the learned trial Court kept on exhorting, beseeching, imploring and supplicating both the petitioner and his counsel to carry out cross-examination of the witnesses produced by the plaintiff. If the provisions of Order XVII, Rules 1 and 2 C.P.C. are not intended to meet such a situation, when will they come into play to rescue one party from the excesses of the other party? Besides, every Court is invested with inherent powers to pass any order to secure the ends of justice and to prevent the abuse of law so long as its orders are not in conflict with the express provisions of Civil Procedure Code, 1908. The conduct of the petitioner has not been commendable, if not reproachful. I have no hesitation in holding that the petitioner abused the process of law and did not allow the Court below to conclude the trial, throwing a spanner in the works. In somewhat similar circumstances, the Hon'ble Supreme Court of Pakistan upheld an order of the High Court in the case of "Haji Muhammad Tayyab v. Muhammad Sharif Mali, Dy. Superintendent, Customs Intelligence and another" (1996 SCMR 1967). This short order is worth reproducing, which reads as under:
"2. On 13-8-1987 Haji Muhammad Tayyab, petitioner herein, instituted suit against the respondents claiming a sum of Rs.56,00,000 as damages for malicious prosecution. It appears that the plaintiff- petitioner had concluded his evidence and on 11-12-1990 the examination-in-chief of Raja Abbas Ali defendant was recorded and right to cross-examine him was reserved by the learned duty Civil Judge. The case was adjourned for his cross-examination on 6-4-1991. On 6-4-1991 the case was again adjourned to 9-6-991 for his cross-examination but on that day too the plaintiffs' counsel did not cross-examine the witnesses despite the Court had to wait for that purpose. The case was again adjourned to 10-6-1991 allowing another opportunity to the petitioner's counsel to cross-examine the witnesses but he failed with the result that the learned Civil Judge had to apply the provisions of Order XVII, Rule 3, C.P.C. closing petitioner's right to cross-examine the witnesses as according to him, the petitioner could not be allowed to abuse the process of the Court. The order dated 10-6-1991 was assailed through Civil Revision No.1171/91 which was dismissed by the learned Single Judge of the Lahore High Court vide impugned order referred to above holding as under:-
"Here the order in question was under Order XVII, Rule 3, C.P.C. and in my opinion all the conditions stated in the precedent case so far as relevant were satisfied. The suit had been pending since 13-8-1987. The examination-in-chief of Raja Abbas Ali, defendant was recorded on 11-12-1990 and the suit had then been adjourned from time to time on the request of the plaintiff or his counsel for the plaintiff or his counsel for the cross-examination of the witnesses. In view of the proceedings dated 10-6-1991, I am inclined to agree with the learned Civil Judge that the conduct of the plaintiff amounted to abuse of process of the Court. The suit had been adjourned from 6-4-1991 to 10-6-1991 expressly for the purpose of the cross-examination of the witnesses. In the circumstances there was no obligation in law upon the Court to keep the case pending and to take it up in the later part of the day."
3. After hearing learned counsel for petitioner and going through the file we are satisfied that the learned Single Judge has rightly maintained the order of the Civil Judge whereby the petitioner was not allowed to resort to delaying tactics in disposal of the suit, and his right to cross-examine the witnesses was closed.
In our view, this case hardly calls for interference in the matter. Leave to appeal is; accordingly, refused and this petition dismissed."
10. The argument of the learned counsel for the petitioner that the petitioner was not to be penalized for the conduct of his counsel has not impressed me a wee bit. It was he who engaged the counsel of his choice. He had ample opportunities to change his counsel. The very fact that he retained him as his counsel up to the last moment goes a long way to show his confidence in him. In the circumstances, he has to bear the responsibility for the acts and omissions of his learned counsel. Now, he cannot turn around to distance himself from the questionable conduct of his counsel. He alone is to face the music.
11. The other limb of the argument of the learned counsel for the petitioner that if his counsel was reluctant to make cross-examination, the petitioner was to be asked to carry out cross-examination is answered by the learned Court below in the impugned order dated 01.04.2015 in the following words:
"The PWs are consistently appearing in the Court. Today was the last and final opportunity for the defendant to cross-examine said P.Ws and it was made clear that in case of non-cross-examination, the right of the defendant to cross-examine said P.Ws shall be closed. But the defendant neither availed this opportunity nor produced his counsel for the same. It is against the basic spirit of justice that matter be prolonged for unlimited period".
12. Even otherwise, I have not been able to lay my hands on any application moved by the petitioner to seek permission from the learned Court below to conduct cross-examination on the witnesses for the plaintiff on his own.
13. The order dated 05.05.2015 passed by the learned Court below declining to make a review of its order dated 01.04.2015 cannot be regarded as having been passed without jurisdiction. On the one hand, there is a narrow scope for review of an order/judgment and on the other, no valid grounds were urged for a review. The scope of review is too well-settled to call for further expounding. Suffice it to make reference to the judgments reported as "Ghulam Murtaza v. Abdul Salam Shah and others" (2010 SCMR 1883), "Abdul Majeed and another v. Chief Settlement Commissioner and others" (1980 SCMR 504), "Mst. Kalsoom Malik and others v. Assistant Commissioner and others" (1996 SCMR 710), "Noor Hassan Awan v. Muhammad Ashraf" (2001 SCMR 367), "Ayyaz Baig alias Bau Chuhanwala v. The State (2002 SCMR 380), Messrs Pakistan International Airlines Karachi v. Inayat Rasool" (2004 SCMR 1737), "Sh. Muhammad Amjad v. The State" (PLD 2004 SC 32), "Syed Wajhul Hassan Zaidi Government of the Punjab and others" (PLD 2004 Supreme Court 801), "Habib ul Haque alias Ajar v. Umer Gul through L.Rs. and others" (2009 SCMR 335), "Mst. Kabir un Nisa and another v. Settlement Commissioner Lands, Lahore and 3 others" (1975 SCMR 493), "Abdul Ghaffar Abdul Rehman and others v. Asghar Ali and others" (PLD 1998 Supreme Court 363), "Mian Rafique Saigol and another v. Bank of Credit and Commerce International (overseas) Ltd and another (PLD 1997 Supreme Court 865), "Begum Nusrat All Gonda v. Federation of Pakistan and others" (PLD 2013 SC 829) and "Haji Muhammad Zaman Khan v. Member Board of Revenue Punjab and others" (2014 SCMR 164).
14. The judgments relied upon by the learned counsel for the petitioner are distinguishable. They proceeded on their own facts and have no application to the facts of the instant case.
15. The upshot of the above discussion is that the impugned orders passed by the learned Court below are unexceptionable and call for- no interference with them. This petition being devoid of merits is dismissed.
RR/M-255/L Petition dismissed.
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