LUTFULLAH VIRK vs MUHAMMAD ASLAM SHEIKH O — 2024 PLD 887 SUPREME-COURT

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LUTFULLAH VIRK VS MUHAMMAD ASLAM SHEIKH O. XVII, Rr. 2 & 3---Court may proceed notwithstanding either party fails to produce evidence, etc---Defendant failing to appear at the time fixed by Court for cross-examination of plaintiff's witnesses---Effect---Right to cross-examination, closure of---Record showed that on 27.04.2005, an adjournment was sought by both the parties to the suit for recovery of damages, and the matter was adjourned for 31.05.2005---When the case was taken up on 31.05.2005, an adjournment was sought by the counsel of the plaintiff (respondent) citing the reason that the plaintiff was unwell---Thereafter, the Court vide order dated 31.5.2005 in a very judicious and fair manner granted and allowed last and final opportunity to both the parties and in the same order directed that the examination-in-chief of the plaintiff would take place on 14.07.2005 at 09:30 AM---Plaintiff produced three witnesses, on 14.07.2005 at 09:30 AM, who recorded their examination-in-chief, but the defendant's (petitioner's) counsel did not show up at all, despite the fact that the Court waited until 01:00 PM on 14.07.2005---Two adjournments were entertained by the Trial Court, one on 27.04.2005 and one on 31.05.2005---Therefore, the only options available to the Court, vis-a-vis the matter before it, were in Rules 2 and 3 of Order XVII of C.P.C.---Rule 2 states that if a party has failed to appear on a date to which a matter was adjourned, then the Court can either "dispose of the suit in one of the modes directed in that behalf by Order IX or make such order as it thinks fit."---Since, the Court did not dispose of the suit, it could only make such order as it thought fit---This order was to close the present petitioner's (defendant's) right to cross-examine the witnesses of the respondent (plaintiff)---Furthermore, the Court's order of 14.07.2005, which closed the present petitioner's right to cross-examine the witnesses of the respondent, also enjoyed the protection of Rule 3 of Order XVII of C.P.C.---Therefore, since the present petitioner could not be allowed any further adjournments, the only logical conclusion the Court could arrive at was to close the present petitioner's right of cross-examining the witnesses, and it did so, by order dated 14.07.2005---Supreme Court observed that suppose that the present petitioner, who as the record showed marked his presence in the cause-list on 14.07.2005, had appeared before the Court and requested an adjournment and the said adjournment had been denied and the present petitioner had refused to participate in the proceedings of the day, that is the examination-in-chief---This would again lead to the Court having the options available to it under Rules 2 and 3 of Order XVII of C.P.C., as a party is said to have failed to appear even if he is present in the Court and applies for adjournment, but his application is refused and he does not thereafter participate in the proceedings---However, had the present petitioner remained present to merely witness the proceedings, once his request for adjournment had been declined and he had decided not to partake in the examination-in-chief, the petitioner's presence would amount to participation in the proceedings and thus would only leave the Court to exercise the options available to it under Rule 3 of Order XVII of C.P.C.---Trial Court rightly closed the right of petitioner to cross-examine the respondent's witnesses and the High Court also quite rightly upheld the order of the Trial Court---Petition was dismissed and leave to appeal was refused.

LUTFULLAH VIRK vs MUHAMMAD ASLAM SHEIKH O — 2024 PLD 887 SUPREME-COURT

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