2004 PLP 1123 (CLC)

Zafar Iqbal Chohan for Respondent. This civil revision assails judgments and decrees dated 3-6-2003 and 18-3-2003 passed by the learned Civil Judge and learned Additional District Judge, Faisalabad whereby petitioner's suit was dismissed under Order XVII, Rule 3, C.P.C. and his appeal their against failed respectively.

2. A short factual background of the case is that the petitioner filed a suit for possession through pre-emption against sale of 6 Marlas of land through a registered sale-deed, for an amount of Rs.30,000, in favour of the respondent. The petitioner pleaded in his plaint that he being "Shafi Sharik" had superior pre-emptive right and having performed Talabs, as required by section 13 of the Punjab Pre-emption Act, 1991, is entitled to a decree in the suit.

3. The respondent being defendant in the suit contested it by denying assertions therein, besides raising certain preliminary objections regarding estoppel, non-maintainability of suit, non-deposit of Zar-e -Soim and incorrect valuation of the suit for the purposes of court-fee and jurisdiction etc. by filing his written statement. Controversial pleadings of the parties necessitating framing of issues and recording of evidence. Learned trial Judge who was seized of the matter, on 18-6-2001 framed 9 issues, out of those Issues Nos.5 and 8 were treated as preliminary and fixed the case for evidence. On the adjourned date, i.e. on 10-7-2001 evidence was not available hence the case was adjourned for evidence of the plaintiff to 17-9-2001. Thereafter the case kept on adjourning for one reason or the other and ultimately on 3-6-2002 the petitioner/plaintiff was proceeded against under Order XVI1, rule 3, C.P.C. his right to produce evidence was closed and his suit was dismissed due to lack of proof.

4. The petitioner aggrieved of the judgment and decree passed on 3-6-2003 by the trial Court, filed an appeal before the learned Additional District Judge, but remained unsuccessful as his appeal was dismissed on 18-3-2003. He has now filed this revision petition for setting aside concurrent judgments and decrees of the two Courts below and respondent in response to notice by this Court, is represented through his counsel.

5. Learned counsel for the petitioner submits that learned trial Judge, while framing issues on 18-6-2001, treated Issues Nos.5 and 8 preliminary. Onus to prove those issues was placed on the respondent/defendant and as such he was to lead evidence but in the interim orders, case was being incorrectly fixed for evidence of the, petitioner/plaintiff. He further submits that no doubt the petitioner had summoned the witnesses through process of the Court but it was done on account of, order, dated 18-6-2001 under which the case was fixed for evidence of the parties. He further elaborated his arguments by saying that unless and until, the respondent had produced his affirmative evidence, the petitioner could not have been required to lead evidence which was to be produced in rebuttal. It has also been contended on behalf of the petitioner that both the Courts below, acted illegally when they dismissed the suit of the petitioner, by returning findings on other issues, which were not put to trial. According to his submissions, even if under Order XVII, rule 3, C.P.C. was correct and justified, even then only Issues Nos.5 and 8 could have been answered against the petitioner and his suit could not have been dismissed.

6. Learned counsel appearing on behalf of the respondent refuted the assertions of the petitioner, supported the judgments and decrees of the two Courts below and argued that the trial Court through an order, dated 30-5-2002 had required the petitioner to produce evidence on the next date of hearing by fixing responsibility of service on him, with a warning of last opportunity to produce evidence but he failed to do the needful as such provisions of Order XVII, rule 3, C.P.C. were rightly invoked. Learned counsel further referred to interim orders and urged that on a number of occasions, case was fixed for evidence of the petitioner/plaintiff, but he never objected to fixation of the case for his evidence. He further elaborated his arguments by saying that such an objection neither was raised in the memorandum of appeal nor in the memo. of revision before this Court, hence, he has accepted fixation of case for his evidence. It is also contended on behalf of the respondent that the petitioner did not file any decree-sheet before the First Appellate Court without which, his appeal was not competent. Learned counsel for the respondent has also argued that from the averments in the plaint, his suit was maintainable at law. He further urged that concurrent findings returned by the two Courts below, are not amenable of revisional jurisdiction of this Court.

7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably on the date of framing of issues, trial Court put Issues Nos.5 and 8 as preliminary by putting those issues to the trial and fixed the case for evidence without mentioning name of any of the parties. Issue No.5 related to fixation of actual price of the property sold whereas Issue No.8 is regarding non-payment of Zar-e-Soim and onus of both these issues was placed on the shoulders of the respondent/ defendant and only these issues being put to trial, the respondent/ defendant was to lead evidence whereafter the petitioner/plaintiff was to produce his evidence, if any, in rebuttal. Trial Court has no doubt fixed the case in certain interim orders for evidence of the plaintiff but it appears that either it was out of inadvertence or on account of some clerical mistake. Similarly summoning of witnesses by the petitioner was due to the order, dated 18-6-2001 whereby case was fixed only for evidence conveying that it is fixed for evidence for the parties. Consequently, I find that the petitioner was neither needed nor was required to produce his evidence on 3-6-2002, the date on which penal provisions of Order XVII, rule 3, C.P.C. were applied against him. Requirement of Order XVII, rule 3, C.P.C. is whether a party to a suit to whom time has been granted to produce evidence and which he is liable/bound to produce and since the petitioner, as observed above, the petitioner was not to lead evidence on Issues Nos.5 and 8 hence, provisions of Order XVII, rule 3, C.P.C. could not have been invoked.

8. Assuming for discussion only that the petitioner was rightly proceeded against under the above referred provisions and his right to lead evidence was rightly closed, result should have been that both these Issues Nos.5 and 8 should have been answered against him. Meaning thereby that under Issue No.5 findings of the trial Court should have been that suit for the purposes of court-fee and jurisdiction is under valued whereas judgment oil Issue No.8 should have been that the petitioner has paid Zar-e-Soim, with these findings on both these Issues Nos.5 and 8 against the petitioner, Court was needed to require the petitioner to make deficiency in court-fee, after its proper determination in accordance with law. After making the deficiency of court-fee, the other issues framed on the file were to be put to trial, requiring the parties to produce their respective evidence and thereafter only, suit should have been decided on merits. It is amazing that none of these courses were adopted by the Courts below and instead, without doing needful and without putting the other issues to trial, suit of the petitioner was dismissed, in a haphazard manner. To my mind, this course was neither open for the Courts below nor is permissible, under law and without adopting a lawful procedure, their judgments/decrees can in no manner be allowed to be determined.

9. Adverting to the objections of the learned counsel appearing on behalf of the respondent, I find that the petitioner has mentioned in his memorandum of appeal before the First Appellate Court that decree has not yet been drawn but the respondent never objected to the maintainability of the appeal before the concerned Court, as there is no such reference in-the judgment by the learned Additional District Judge. In absence of any objection by the respondent at the first available opportunity to him, I am not going to accept it, in revisional jurisdiction, especially when I have already concluded that procedure adopted by the learned trial Judge, is not in accordance with law and I myself being equipped with suo motu revisional jurisdiction, cannot allow such a glaring illegality, to continue and thus, even if I accept the objection of non-maintainability of the appeal before the First Appellate Court, I can still interfere in the illegal procedure adopted by the trial Court and to annul the void judgment passed, in result thereof. The other objection with regard to non-maintainability of the suit of petitioner on account of loose averments in the plaint, raised by the respondent, also has no substance in it because the respondent having already filed written statement where over issue have been framed, it will be prerogative of the trial Court to decide this aspect of the matter and I do not intend to pre-empt this jurisdiction of the trial Court, in order to deprive parties of their right of appeal against the ultimate decision in the suit.

10. For what has been discussed above, both the Courts below have acted illegally and with material irregularity in deciding the suit, filed by the petitioner and thus, returned absolutely void judgments/decrees which not only run counter to the file but also are opposed to the settle principles of law, known for administration of justice. The illegalities pointed out, are amenable to revisional jurisdiction of this Court and consequently by accepting this revision petition judgments and decrees dated 3-6-2002 and 18-3-2003 passed by the learned Civil Judge and learned Additional District Judge, Faisalabad, respectively, are set aside with the result that the suit of the petitioner shall be deemed to be pending before the trial Court and shall be decided afresh, firstly on Issues Nos.5 and 8 after affording the parties opportunity of leading evidence in accordance with law. The parties are directed to appear before the trial Court on 7-4-2004. There will be no order as to costs. M.A.W./M-106/L Order according.