2010 PLP 1456 (YLR)

HAFIZ ABDUL REHMAN ANSARI, J.

Through this Constitutional petition petitioners Muhammad Ashiq etc., seek setting aside of the order, dated 1-2-2010, passed by the learned Additional District Judge, Khanewal, whereby he dismissed the revision petition of the petitioners against the order, dated 14-1-2010 of the learned Civil Judge, Khanewal, closing the right of the petitioners under Order XVII rule 3, C.P.C. to produce evidence in the proceedings on the application under section '12(2), C.P.C. filed by Mashooq Ahmad, respondent No.3 herein.

2. Brief facts of the case are that respondents Nos.3 and 4 filed an application under section 12(2), C.P.C. on 15-9-2003 before the learned District Judge, Khanewal, alleging therein that petitioners predecessors obtained an ex parte decree dated 19-7-1999 in a suit for declaration from the learned Civil Judge Ist Class, Khanewal, by concealment of facts, misrepresentation, fraud and connivance with the revenue staff regarding agricultural land measuring 352 Kanals 16 Marlas, situated in Chak No.56/15-L, Tehsir Mianchannu, District Khanewal. The said application was sent to the Civil Judge. The petitioners contested the same and filed written reply; from the divergent pleadings of the parties the learned trial Court framed necessary issues on 23-6-2005 and the case was fixed for applicant's evidence on 30-6-2005. Applicant's evidence was recorded and completed on 3-7-2007, but the right of the petitioners to produce their evidence was closed vide order dated 26-5-2009 by the learned Civil Judge. The said order was assailed by the petitioners by filing a Revision petition, which was accepted vide order dated 7-10-2009 by the learned Additional District Judge, Khanewal and the petitioners were provided one opportunity to produce evidence and the case was fixed for evidence of the petitioners on 14-1-2010. When again the petitioners did not produce their evidence so the right of the petitioners was again closed by the trial Court vide order dated 14-1-2010. The petitioners again preferred a Civil Revision against the said order, which has been dismissed by the learned Additional District Judge vide the impugned order dated 1-2-2010.

3. The learned counsel for the petitioners submits that the learned counsel for the petitioners in the trial Court on 14-1-2010, the date fixed for recording of evidence of the petitioners, was busy in the Bar Association Elections of Mian Channu therefore he had submitted an application of adjournment but the learned trial Court vide order dated 14-1-2010 illegally without any cogent reasons closed the right of the petitioners to produce evidence. Submits that the petitioners to produce evidence. Submits that the petitioners' civil revision filed against the said order has also illegally been dismissed by the learned Additional District Judge, Khanewal vide the impugned order dated 1-2-2009 upholding the order dated 14-1-2010. Learned counsel submits that on 14-1-2010 the counsel for the petitioners was busy in the Mian Channu Bar Association elections so the learned trial Court should have adjourned the case. Further submits that on the same day the learned trial Court should not have passed the order. Placed reliance on the case reported as Muhammad Aslam v. Nazir Ahmed 2008 SCMR

942. Learned counsel submitted that very valuable rights are involved so it is in the interest of justice that the lis is adjudicated on merits rather than on technicalities. The order passed by the trial Court closing the right of evidence of the petitioners has caused grave miscarriage of justice and the learned Additional District Judge Khanewal has committed same illegality upholding the order of the trail Court dated 14-1-2010 passed under Order XVII rule 3, C.P.C.

4. I have heard the learned counsel for the petitioners at length. Perusal of the impugned order dated 1-2-2010 reveals that this is the second time that right of evidence of the petitioners is closed by the learned trial Court. Earlier, the right of the petitioners to produce evidence was closed by the trial Court but in revision the learned Additional District Judge had allowed the petitioners one opportunity to produce their evidence. Petitioners should have been careful in availing the only one opportunity which had been granted by the learned Additional District Judge to produce evidence, so it was incumbent upon the petitioners and their counsel to produce evidence before the trial Court on 14-1-2010 but instead of that the learned counsel preferred to go to Mian Channu to participate in the elections where he was not a candidate for any seat. He should have preferred to fulfil his professional obligations keeping in mind that it was only one opportunity granted by the learned Additional District Judge to produce evidence. The learned trial Court was constrained to close the right of evidence of the petitioners on 14-1-2010 as neither the learned counsel for the petitioners nor their witnesses were present. In the light of the order passed by the learned Additional District Judge the learned trial Court could not give further opportunity to the petitioners to produce their evidence. Learned Additional District Judge rightly dismissed the revision petition filed by the petitioners against the order dated 14-1-2010.

5. There is no illegality or irregularity pointed out by the learned counsel for the petitioners for interference by this Court in the impugned order while sitting in Constitutional jurisdiction. Until and unless there is any jurisdictional error or defect pointed out in the impugned order, discretion under Article 199 of the "Constitutional" cannot be exercised in favour of the petitioners. I find no merit in this writ petition, which is dismissed in limine. M.U.Y./M-141/L Petition dismissed.