Question; Preposition; Problem:
Right of cross Examination has been closed due to plaintiff’s failure to cross-examine witness on several dates
to which case was adjourned by Trial Court for conducting cross-examination,
in spite of several opportunities given to plaintiff’s counsel --- Failed to
cross-examine witness.
What Remedy is available to Plaintiff?
What defense can be availed by defendant?
Reasons:
There may be several reasons such as Party try to delay the
matter using delaying tactics, or there may be some genuine reason such as wrong
date had been written in lawyer’s diary etc.
Answer; Remedy; Solution:
Remedy available to plaintiff is to file a revision petition
in appellate Court—seeking set aside impugned order— subject to payment of costs.
What remedy, solution is available to above mentioned
problem (preposition) to plaintiff?
What defense, solution is available to above mentioned
problem (preposition) to defense counsel?
Relevant Provision of Concerned law:
QANUN-E-SHAHADAT ORDER, 1984‑‑‑Article 133
Order xvii rule 3 (ORDER 17 RULE 3 )Civil Procedure Code (V of 1908):
Order xvii rule 3 states:
“Court may proceed
notwithstanding either party fails to produce evidence, etc. Where any party to a suit whom time has been granted fails to
produce his evidence, or to cause the attendance of his witnesses, or to
perform any other act necessary to the further progress of the suit, for whichtime
has been allowed, the Court may, notwithstanding such default, proceed to
decide the suit forthwith.”
Solution:
What remedy, solution is available to above mentioned problem (preposition) to plaintiff?
Authorities, Remedy, Solution Available to Plaintiff:
Remedy available to plaintiff is to file a revision petition
in appellate Court—seeking set aside impugned order— subject to payment of costs.
Revision petition filed by petitioner--- Right of
cross examination has been closed despite two opportunities, counsel for
defendant showed his inability to cross-examine plaintiffs' witnesses---Trial
Court closed the right of defendant to cross-examine plaintiffs'
witnesses---Plea raised by defendant was that Trial Court had no jurisdiction
to close the right to cross-examine a witness---Validity---Trial Court could
not have proceeded under O.IX or XVII C.P.C. for the reason that unless the
advocate of defendant had either withdrawn his power of attorney or his power
of attorney was determined with leave of Court in terms of O.XXX, R.4(2)
C.P.C., his inability to cross-examine the plaintiffs' witnesses was not only
against the provisions of law but also amounted to misconduct on his
part---Trial Court had the jurisdiction to close the right of cross-examination
iii such circumstances---Case was adjourned to several dates in a routine
manner and without proper application of mind by Trial Court in terms of
O.XVII, Rr. 1 and 3, C.P.C. hence the order passed by Trial Court was not
legally justified, specially when there was neither any notice to the defendant
giving him last and final opportunity for such purpose, nor the plaintiffs were
themselves serious for the production of their evidence---While maintaining the
order of Trial Court on legal plane , High Court declined to sustain the same
in view of the factual position and held that Trial Court was a bit slow in
passing such order and for that matter the Trial Court could adjourn the case
on payment of some costs directing the counsel either to make the defendant
available on the next date of hearing or to come prepared to cross-examine
plaintiffs' witnesses; as such the same would have not only saved the parties
from further litigation but in the meanwhile even the main suit would have been
decided uptil now---Order passed by Trial Court was set aside by High Court in
exercise of revisional jurisdiction, subject to payment of costs. (2006
M L D 1447)
What defense, solution is available to above mentioned problem (preposition) to defense counsel?
Authorities, Remedy, Solution Available to Defense counsel:
Plaintiff's failure to cross-examine witness on
successive dates to which case was adjourned by Trial Court for conducting
cross-examination--=Trial Court, on such failure closing his right to
cross-examine the defendant witnesses under---Such order was affirmed by High
Court in revision---and High Court were correct in holding that conduct of
cross-examine witness on successive dates, amounted to abuse of process of
Court---High Court had, thus, rightly maintained order of Trial Court whereby
plaintiff's right to cross-examination was closed---Leave to appeal was refused
in circumstances.
(1996 S C M
R 1967)
Failure to cross‑examine witness‑‑‑Effect‑‑‑Opportunity
was given to the petitioner/plaintiff to cross‑examine witness of the
respondent/defendant. but witness was not cross‑examined‑‑‑Trial Court closed
the right of cross‑examination and the same was not allowed by the Lower
Appellate Court in a revision petition filed by the pet itioner,'plain‑iff‑‑‑Validity‑‑‑Orders
of both the Courts below were passed in exercise of jurisdiction vested in them
and such orders did not suffer from any illegality or irregularity warranting
the exercise of Constitutional jurisdiction of High Court.
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