2003 PLP 1252 (MLD)

Riaz Hussain son of Wahid Bukhsh had moved an application under Order IX, Rule 13, C.P.C. for setting aside an ex parte decree passed against him and his brother Ijaz Hussain on 4-7-1995 in a suit for specific performance of an agreement. The application was opposed by the decree-holder Sardar Riaz Hussain (respondent No. 1 in this civil revision). The learned trial Court framed the following issues on the said application. (1) Whether the petition is time-barred. (2) Whether there are sufficient grounds to set, aside the ex parte judgment/decree dated 4-7-1995.

2. On 10-9-2002 evidence of the petitioners was closed and as there was no evidence in. support of the application it was dismissed vide judgment recorded on the same day.

3. Appeal against that judgment was dismissed by District Judge on 29-10-2002.

4. Both the aforesaid judgments are assailed in this civil revision as illegal, void, ultra vires and without jurisdiction. Reliance was placed on Allied Bank of Pakistan Limited; v. Abdur Rehman Khan and 2 others (1986 CLC 3021 Peshawar) and Zulfiqar v. Muhammad Jan (2002 CLC 932).

5. It is urged by the learned counsel for the petitioner that former counsel of the petitioner had either inadvertently or intentionally mis informed the petitioner about the date as 10-10-2002 instead of 10-9-2002 which was fixed for evidence of the petitioner on which date his application was dismissed after closing evidence under Order XVII, Rule 3, C.P.C. In support of the said contention a chit was produced before the learned District Judge, showing date of hearing .as 10-10-2002. The appeal was dismissed by the learned District Judge, for the reasons that the petitioner did not disclose the name of the Advocate who had informed him about the incorrect date; affidavit of that Advocate was not produced in support of the assertion of communication of incorrect date due to inadvertence; chit produced by the petitioner containing incorrect date of hearing did not contain signatures of any person; according to record of the trial Court petitioner's counsel was present on 10-9-2002 when his evidence was closed and his petition was dismissed for non-production of evidence; prior to that the petitioner had failed to produce his evidence on five dates of hearing which were given on the request of his counsel; and that contention about detention of the petitioner in jail at the time of alleged agreement of sale was not supported by any documentary evidence.

6. According to the order sheet of the trial Court the petitioner was provided sufficient opportunities to produce his evidence and on 20-6-2000 when evidence was again not present as usual the case was adjourned on the request of petitioners' counsel to 10-9-2002 with clear indication that it was the last opportunity. On the said date his counsel was present out neither the petitioner nor his evidence was there. Record did not indicate that any explanation for non-production of evidence on that day was given by the counsel for the petitioner or any request for further adjournment was made by him hence in the circumstances no illegality was committed by the trial Court in closing the petitioner's - evidence and dismissing his application for want or evidence.

7. Reasons mentioned by the learned District Judge, in the impugned judgment for dismissing the appeal are cogent and plausible and by no stretch of imagination the said order can be deemed as void, ultra vires or without jurisdiction.

8. The authority 1986 CLC 3021 Peshawar on which reliance was placed by the petitioner's counsel, is not applicable because in that case it is held that where adjournment of case was not at the instance of party, penal provisions of Order XVII, Rule 3, C.P.C. could not be invoked. In the present case the adjournment was granted at the instance of the petitioner's counsel with clear indication that it was last opportunity. The other citation 2002 CLC 932 is also distinguishable because impugned orders relate to dismissal of petitioner's application under Order IX, Rule 13, C.P.C. wherein question of service or non-service of summon was not involved.

9. Section 115, C.P.C. is directed against irregular exercise, non -exercise or illegal assumption of jurisdiction and not against conclusions of fact or law not involving the question of jurisdiction. No jurisdictional record could be pointed out by the petitioner's counsel in any of the impugned orders. Revision petition being devoid of any merit is hereby dismissed in limine. S.M.A.H./R.210/L Petition dismissed.