P L D 2006 Lahore 255
(a) Interlocutory application--
---Order passed in an interlocutory application---Validity---Such order was merely a tentative assessment and would not take place of findings to be recorded by Court on basis of evidence, which might be produced by parties.
(b) Civil Procedure Code (V of 1908)---
----O. XV, R.3---Decision of suit on basis of an issue out of several issues---Scope---Provision of O.XV, R.3, C.P.C., could be invoked in appropriate cases to dispose of a suit by decision on a certain issue---When determination of other issues was essential and also dependent upon recording of evidence, then fragmentation of trial would delay decision and prolong litigation, which course should not be encouraged---Principles.
Ibrahim v. Muhammad Hussain PLD 1975 SC 457; Mahomed Sulaiman v. Kumar Birendra AIR 1922 PC 405; Ray Nicholas Lines and others v. All India Spinners Association and another AIR (34) 1947 Pat 185; Joban Das v. Ganga Ram and others AIR (36) 1949 Him. Prad. 7; Bashir Ahmed and 8 others v. Aftab Ahmad and 2 others PLD 1976 Lah. 1433 and Raza Hussain v. Haji Qaisar Iqbal and 7 others 1996 MLD 55 rel.
(c) Administration of justice---
----Fragmentation of trial would delay decision and prolong litigation, thus, Court should not encourage such a course.
Dr. Danishwar Malik for Petitioner.
Ch. Bashir Ahmed and Muhammad Ahmed Qayyum for Respondent.
Date of hearing: 20th February, 2006.
Dr. ANJUM HABIB VOHRA VS WASEEM AHMAD KHAN
P L D 2006 Lahore 255
Before Syed Zahid Hussain, J
Dr. ANJUM HABIB VOHRA---Petitioner
Versus
WASEEM AHMAD KHAN---Respondent
Civil Revision No.1714 of 2005, heard on 20/02/2006.
JUDGMENT
SYED ZAHID HUSSAIN, J.--Order dated 4-7-2005 whereby application moved by the petitioner for decision of issue No.3-A in the first instance was dismissed by the learned trial Court, has been assailed through this revision petition.
2. The contention of the learned counsel for the petitioner is that since Rule 3 of Order XV of the Code of Civil Procedure, 1908 permitted and enabled the petitioner to make such an application, the same was moved, which application has been misconceived by the learned trial Court and a wrong decision has been made as if the application was for treating the issue as "preliminary" one. It is further contended that even if, the. application mentioned an incorrect legal provision yet it was indeed an application under Order XV, Rule 3 of the Code of Civil Procedure, 1908, which should have been decided by 'the trial Court within the parameters of the said provision of law. According to the learned counsel such illegality committed by the trial Court, need to be corrected and interfered with by this Court in revisional jurisdiction under section 115 of the Code of Civil Procedure, 1908.
3. The learned counsel for the respondent on the other hand has supported the order passed by the learned trial Court who has urged that in the earlier round when C.R.No.597 of 2005 was disposed of by this court with consensus on 23-5-2005, not only the case was transferred from the Judicial Officer then seized of the matter it was ordered to be tried expeditiously but now an attempt has been made to prolong the litigation by seeking piecemeal decision of the matter although the respondent/plaintiff was ready to cooperate in the decision of the matter expeditiously.
4. The respective contentions have been considered. Suffice it to observe that in the suit for specific performance which is pending before the trial Court initially the issues were framed on 24-9-2004 whereafter an additional issue (No.3-A) was also framed. At the stage of recording of evidence, application for rejection of- the plaint under Order VII, Rule 11 of the Code of Civil Procedure, 1908 was filed by the petitioner/ defendant, which was dismissed by the learned trial Court vide order dated 18-1-2005. C.R. No.597/2005 was filed in order to assail the said order. The said revision petition was disposed of on 23-5-2005 in the following manner:--
"(i) That the factual controversies emerging from the respective pleas in the suit qua which even issues have been framed, need to be decided after recording evidence by the trial Court. Application for seeking rejection of the plaint under the circumstances and litigation ensuing qua the same would have merely prolonged the agony of litigation between the parties.
(ii) The apprehension of the petitioner as expressed by the learned 'counsel that while deciding application the trial Court has made certain observations which may prejudice the stance of the petitioner-defendant, can be taken care of, by observing that' such an order passed by the Court in an interlocutory application is merely a tentative assessment and does not take the plea of findings to be recorded by the Court on the basis of evidence that may be produced by the parties. I have no doubt that the court while dealing with the suit would not in any way be influenced by any such assertion noted in the order or observation made therein and that part of the order of the trial Court whereby the petitioner has been burdened with costs of Rs.2000 in view of the above consensus is modified that no costs will be claimed by the respondent from the petitioner.
(iii) In order to save the parties from lengthy and prolonged litigation, the learned counsel for the parties have agreed that the trial Court may be ordered to conclude the trial and dispose of the same expeditiously. Accordingly the trial Court is directed to conclude the trial and decide the suit before the end of year 2005.
(iv) In view of the approach adopted by the trial Court in order dated 18-1-2005, the learned counsel for the petitioner has expressed certain apprehensions that the said learned Court may not feel free to decide the matter on merits. In order to ward off this apprehension, the learned counsel for the respondent has agreed to the transfer of the suit to any other court of competent jurisdiction. For that matter, let the file be placed before the learned District Judge, Lahore, who will entrust the suit to some other learned Civil Judge, for its trial and conclusion in accordance with law."
It was thereafter that application (under Order XIV and section 151 of the Code of Civil Procedure, 1908) was filed on 21-6-2005 with the prayer that "the said issue may expediently be tried and decided first postponing the other issues to facilitate quick decision of the suit." Issue which was sought to be "tried and decided first" was No.3-A, which reads as follows:
"Whether the defendant has rescinded the sale agreement through notice dated 13-7-2004, and paid Rs.20,00,000 to the plaintiff ?OPD."
The application was contested and as observed above, was dismissed on 4-7-2005. A great stress has been laid by the learned counsel to highlight that the object and purpose of Rule 3 of Order XV of the Code of Civil Procedure, 1908 has been ignored by the trial Court who should have decided the said issue in the first instance.
5. On consideration of the matter I am however unable to countenance the stance of the learned counsel, since there were other issues, determination whereof was also essential. Indeed the decision of issue No.3-A by the 'trial Court in the first instance would have been dependant upon the recording of evidence. The possibility cannot be ruled out that the rest of the issues would have also entailed recording of evidence for their determination. It would have merely been duplication and double dealing of matter and exercise of recording evidence which would have continued to engage the parties in the litigation for a long time. That cannot be the object of the law. Not only that the fragmentation of the trial delays the decisions and prolongs the litigation, C the court should not encourage such a course. Indeed it was disapproved by the Hon'ble Supreme Court of Pakistan in Ibrahim v. Muhammad Hussain (PLD 1975 SC 457). Though Rule 3 of Order XV of the Code of Civil Procedure, 1908 can be invoked in appropriate cases to dispose of the suit by decision on a certain issue yet it is not ordinarily so done and the Court is expected to record findings and pronounce its opinion D on all issues particularly when the determination of the issues require recording of evidence. Reference in this context may be made to Mahomed Sulaiman v. Kumar Birendra (AIR 1922 Privy Council 405), Ray Nicholas Lines and others v. All India Spinners Association and another (AIR (34) 1947 Patna 185 ) and Joban Das v. Ganga Ram and others (AIR (36) 1949 Himachal Pradesh 7). In Bashir Ahmed and 8 others v. Aftab Ahmad and 2 others (PLD 1976 Lahore 1433) it was observed that since the evidence was required to be led for the disposal of almost all the issues, none of the issues could be decided separately without recording evidence on all the issues. The prayer made by one of the parties before the trial Court for decision of some of the issues was declined and revision petition was dismissed. In Raza Hussain v. Haji Qaisar Iqbal and 7 others (1996 MLD 55) with reference to Rule 3 of Order XV of the Code of Civil Procedure, 1908 it was observed that if the Court is called upon to record evidence of the parties for decision of an issue it should be decided along with the other issues. The order of the trial Court declining the prayer for decision of an issue in the first instance was maintained and revision petition was dismissed.
In the instant case, as mentioned above, number of issues have been framed. Issue No.3-A is one of those issues. All the issues require recording of evidence. It is not only consistent with the policy, rationale E and object of the law that the piecemeal decisions should be avoided, it is also in the interest of the parties as well to adopt such a course,' which may not prolong the litigation. In dismissing the application the learned trial court did not commit any illegality or error of jurisdiction which could attract the supervisory jurisdiction of this court under section 115 of the Code of Civil Procedure, 1908. I would, therefore, decline interference with the order passed by the trial Court.
6. It has been complained by the learned counsel for the petitioner that after the filing of the revision petition examination-in-chief of a witness was recorded by the trial Court, which he should not have done. The order-sheet shows that there was no restraint order by this Court till 18-7-2005 when the proceedings were stayed. No evidence, is stated to have recorded by the trial Court after the passing of such a restraint order. The learned counsel for the respondent, however, states' that the witness whose examination-in-chief was recorded will be produced by the respondent for facing cross-examination. It should redress such a grievance of the petitioner.
It may be observed that while disposing of the above mentioned earlier revision petition it was observed with the concurrence of the then learned counsel for the parties that the trial Court will decide the suit before the end of year, 2005. Since it is not possible now to adhere the said schedule it is expected and observed that the learned trial Court will proceed in the matter expeditiously and hopefully decide the suit before the end of year 2006.
The revision petition is dismissed accordingly with no order as to costs.
S.A.K./A-24/L???????????????????????????????????????????????????????????????????????????????????? Revision dismissed.
0 comments:
Post a Comment