Suit No.1195/2000

Date Order with signature of Judge

1.For hearing of CMA No.1969/09

2.For hearing of CMA No.1846/09

3.For arguments.

29.04.2009

Mr. H.A. Rehmani Adv. for the Plaintiff.

Mr. Zaffar Alam Khan Adv. for Defendants No.1 to 4.

Mr. Ashiq Ali Anwar Rana Adv. for Defendant No.5.

1.Through this application, Defendants No.1 to 4 have prayed for referring of Exs.DW-1/5, 1/6, 1/7, 1/11, 1/12, 1/14, 1/15, 1/17, 1/18, Ex.PW-4/2, PW-1/2 to the Hand Writing Expert for comparison with the handwriting on Ex.PW/18, Ex.DW-1/12, Ex.DW-1/4.

Mr. Zafar Alam, learned counsel for Defendants, has contended that the documents, sought to be referred to the Hand Writing Expert consists of two sets, first being the documents, produced by the Plaintiff to be in the handwriting of Defendants No.1 to 4 and denied by them and the second being the documents produced by Defendants No.1 to 4 in the handwriting of previous landlord i.e. rent receipts for comparison with his admitted handwriting.

Mr. H.A. Rehmani, counsel for the Plaintiff, has vehemently opposed the grant of such request on the ground that the evidence in the instant suit was completed in November, 2005 and such belated request is motivated to delay the proceedings.

As to the first set of documents i.e. the documents, produced by the Plaintiff, allegedly in the handwriting of the Defendants No.1 to 4 and denied by them, Mr. Zafar Alam is not in a position deny that the burden to prove such documents lies upon the Plaintiff i.e. the person who has produced these documents and therefore to that an extent the request appears to be misconceived and consequently rejected.

As to the second set of documents, i.e. the rent receipts executed by the previous landlord, sought to be sent to the Hand Writing Expert for comparing it with his admitted handwriting at such a belated stage i.e. after more than three years of closure of evidence does not appear to be bonafide specially in view of the fact that this Court under Article 84 of Qanoon-e-Shahadat Order 1984 has ample power to tackle such controversy by comparing the admitted handwriting with the one disputed.

The application, consequently, stands rejected.

2. Through this application, Defendants No.1 to 4 have prayed that they be allowed to cross-examine Defendant No.5.

Mr. Zafar Alam Khan, learned counsel for Defendants No.1 to 4, has contended that Defendant No.5 has made certain admissions in her written-statement which go to the benefit of Defendants No.1 to 4, therefore the instant application has been moved for calling Defendant No.5 in the Witness Box.

Mr. H.A. Rehmani, learned counsel for the Plaintiff, has opposed the grant of the application on the ground that it is for the Defendants to succeed on the strength of their own defence and not on the weaknesses of the side opposite. Learned counsel further contended that the admission of the Plaintiff cannot be used against co-Plaintiff and likewise the admission of defendant cannot be used against co-Defendant as held by the Hon'ble Supreme Court in the case of SHAH MUHAMMAD vs. DULLAH (2000 SCMR 1588) and therefore the application be dismissed as misconceived.

After hearing the learned counsel for the parties, it appears that the purpose of the instant application is to avail benefit of certain admission made by Defendant No.5 in her written-statement and since Defendant No.5 has chosen not to appear in the Witness Box, therefore such written-statement has lost its utility and therefore Defendants No.1 to 4 intend to adopt coercive mode for her production in the Witness Box to avail benefit of such written-statement.

It is by now well settled law that in case the Defendant fails to appear in the Witness Box, his written-statement cannot be exhibited and would, ultimately, be discarded and probably this proposition motivated the Defendants to resort to the instant application. In my opinion, parties to the suits cannot be forced to appear in Court to prove their case as the law provides consequences for their non-appearance. In case of Plaintiff's failure to appear in Court when the suit is fixed for hearing the consequence of non-appearance resuls in dismissal and likewise the consequences for Defendant's non-appearance in Court results in exparte proceedings. In view of this position, I am of the opinion that it is the option of the parties to the suit to affect appearance with known consequences of non-appearance. The application, consequently, being misconceived, is dismissed.

3. At joint request of the parties, to come up on 20.05.2009.

Judge