P L D 1989 Lahore 476 (PLP)

Petitioner's suit for declaration and perpetual injunction with regard to supply of electric‑energy and award of damages; was contested and set down to be tried on a total of 4 issues including that of the relief and plaintiff was called upon to produce his evidence on 29‑6‑1988 and then, for the absence of evidence, on 16‑7‑1988 when again he requested for being granted an adjournment for the purpose. His request was acceded to and the date 14‑9‑1988 was fixed for recording of his evidence. On that date evidence of the petitioner was again not present and it seems that even he himself was not in attendance. His counsel appeared but could not furnish any reasonable explanation for the petitioner's failure to produce his evidence. In that situation, learned trial Judge pressed into aid the provisions of Rule 3 of Order XVII of the C.P.C. and closed the case of the petitioner. In consequence, by the same order dated 14‑9‑1988, he also dismissed the suit for lack of evidence.

2. An appeal thereagainst filed by the petitioner came up for hearing before the learned District Judge who attended to the case and came to the conclusion that all the conditions of Rule 3 of Order XVII of the C.P.C. were satisfied when the trial Judge resorted to closure and proceeded to dismiss the suit of the plaintiff for want of evidence. He also observed that onus of all three issues framed in the suit was on the plaintiff and the trial Judge was justified not only in closing the evidence of the plaintiff but also in dismissing the suit for want .of evidence. In result, he dismissed the appeal on 22‑9‑1988. He has now invoked the revisional jurisdiction of this Court.

3. Even a casual denial about the plaintiff‑petitioner's failure to produce his evidence in the trial Court has not been made at any stage, muchless has any explanation been even attempted to be offered regarding this failure to take his case out of the pale of a wilful default. As such, propriety of the action taken under Order XVII, Rule 3, C.P.C. against the petitioner is not in contest in this case and the liability‑ of his default being visited with penal consequences thereunder remains uncontroverted.

4. Solitary argument raised herein is with reference to Rule 5 of Order XX of the C.P.C. that the judgment of dismissal of the petitioner's suit was not lawful inasmuch as learned trial Judge was under a duty to have dealt with each issue separately for disposal, may be on account merely of want of evidence but he has not done so and has disposed of the entire suit with the mere observation that it is dismissed on account of failure to adduce evidence. It is true that in making such an observation learned trial Judge had only inaptly expressed himself because what he seemed to really mean to say was that with the absence of evidence the entire suit had been left unproved and this would have been enough for its dismissal. The course in view of the learned counsel really pertains to those cases where some kind of evidence exists on the record and is not expected to be followed even in cases where no evidence is adduced at all, like the present one because if the suggested course was to be adopted even in such‑like cases then the judgments will become mere monotonous repetitions of routine sentences. Nothing wrong can be said to have been done in the same statement having been made in a consolidated form to bring about disposal of such a case of no evidence because Rule 5 (ibid) itself envisages the disposal of the entire suit being made on one or more of the issues framed therein and the disposal made by the trial Court squarely falls under the later category of disposals mentioned therein. Be the above as it may, the plaintiff has come up here in revision and the appellate judgment of affirmance of the dismissal of his suit is also against him. Thus, it becomes his burden to make out a case of commission of jurisdictional error in the judgment passed in the appeal below. Such can certainly not be the case here because l section 99 of the C.P.C. forbids the decrees from being reversed or ~ cases being remanded in appeal on account of some error, defect or irregularity in the proceedings of the suit without their affecting the merits of the case or the jurisdiction of the Court. It is obvious that the supposed defect in the disposal of the suit by the trial Court could not have the consequence of affecting the merits of the case and learned District Judge has rightly not set aside the trial Court's 1 decree on the basis of the so‑called irregularity in the disposal of the suit. He has diligently given effect to the requirements of that section and there cannot be any question of some illegality or error of jurisdiction being involved in his appellate judgment.

4. Result of the foregoing is that there does not exist any case for exercise of revisional jurisdiction. The revision petition is liable to fail and is accordingly dismissed with costs. A.A./G‑240/1,??????????????????????????????????????????????????????????? Revision dismissed.