Monica Malik v. Amit Malik

1. This petition seeks setting aside of an order dated 13.8.2013 whereby the petitioner’s right to lead evidence was closed by the Family Court, in a petition filed by the respondent-husband. Although the petitioner was represented through counsel however she could not be present for cross-examination, therefore the Trial Court considering that a number of opportunities had already been granted to her closed her evidence. Learned counsel for the petitioner states that this was the only occasion on which there was default in appearance by the petitioner who was otherwise duly represented throughout the proceedings. Perusal of the Court orders shows that there was representation on behalf of the 2014:DHC:596 petitioner (respondent in HMA No. 27/2010) on 11.4.2013, 20.4.2013, 4.6.2013 & 9.7.2013. That her examination-in-chief was recorded on 6th March, 2013 and when it was next listed for 11.4.2013 the learned Presiding Officer had gone to attend an environment awareness programme. When the matter was taken up on 20.4.2013, the dismissal of petition was sought on account of non-payment of arrears of maintenance to the wife. On the next date thereafter, nothing transpired since the Presiding Officer had been transferred and on the subsequent listing the case could not be taken up since the Advocates were abstaining from work – allegedly because of strike declared by the Bar Association. However, the respondent was represented through a proxy counsel. The case was next listed on 13.8.2013 for clearance of payment arrears of maintenance as well as for cross-examination of RW-1 i.e. the petitioner. It is only on this date when the petitioner did not appear as required, for further recording of her evidence. Therefore from the perusal of the records it cannot be concluded that the number of opportunities had already been granted to the petitioner (wife) to complete her evidence. Subsequent to the recording of the examination-in-chief no adjournment was sought by the petitioner. The reasons why the cross-examination could not be held on each of the five dates subsequent thereto are contained in the afore-discussed orders. No fault can be attributed to the petitioner. Therefore, there is material irregularity in the impugned order. Accordingly, it is set aside and the petitioner is permitted to be crossexamined and lead her evidence. This Court is of the opinion that in deserving and justifiable cases Court fixed schedules can be modified to meet the ends of justice. This being the first default in appearance, on the date on which the petitioner was required to appear in Court, could well have been condoned subject to payment of costs rather than visiting the petitioner with precipitate effect of closing her evidence. The impugned order would have an irreparable prejudice upon the petitioner’s rights and contentions. In the circumstances, the order is set aside. However, she did not appear on 13.8.2013 and knew in advance that she would be unable to attend Court because of personal constraints, she would have intimated the opposite party and sought an adjournment before the Court, either by mutual consent or by way of an application. Therefore, for this default, the petitioner is subjected to costs of Rs.1,500/- to be paid to the respondent. Subject to the costs, the petition is allowed. The Trial Court shall proceed to record the evidence of the respondent. Looking at the facts that case is pending since 2010 the Trial Court shall endeavour to dispose off the pending petition itself in the next one year, provided there are no legal impediments in doing so.

2. The petition is disposed off in the above terms.

NAJMI WAZIRI (JUDGE) JANUARY 30, 2014