2010 PLP 1005 (MLD)

PERVAIZ INAYAT MALIK, J.

Briefly stated facts as those emerge out of this constitutional petition are' that respondent No.2 Makhan Khan' filed a suit for possession under section 9 of the Specific Relief Act against the petitioner in the Court of learned Civil Judge, Layyah, which was contested by the petitioner by filing written statement. The learned trial Court framed as many as eight issues. Plaintiff produced oral as well as documentary evidence Exh. P.1 to Exh.P.10 whereas the defendant/petitioner produced only documentary evidence Exh. D.1. consisting of four pages and judgment, dated 6-10-1997. Since they failed to produce any oral evidence despite having been provided number of opportunities, their evidence was closed under Order XVII, Rule 3, C.P.C. on 7-4-2001 and vide impugned judgment and decree, dated 25-9-2003, the suit filed by the respondent No.1 was decreed, where against an appeal was preferred which was dismissed vide the impugned judgment and decree, dated 18-12-2003.

2. It is on the record that initially the learned counsel for the petitioner tried to delay the matter and sought adjournment for arguing the appeal before the learned lower appellate Court and also requested that same may be dismissed for non-prosecution, however, the learned Additional District Judge, Layyah proceeded to dismiss the appeal in limine on merits on 28-12-2003, which order was not challenged instead a review application was filed which too was dismissed vide judgment, dated 7-2-2004.

3. Through this constitutional petition all the three orders referred to above passed by the learned Courts below have been assailed.

4. Mr. Muhammad Tahir Ejaz Joya Advocate learned counsel for the petitioner argues that learned Civil Court on erroneous assumptions proceeded to close the evidence of the petitioner under Order XVII, Rule 3, C.P.C. without providing fair opportunity to the petitioner; that learned trial Court despite repeated prayers that if the appeal is not competent the same may be treated as revision proceeded to dismiss the appeal as well as review application without any cogent reasons and that by now it is well-settled law that if appeal is not competent in that eventuality appeal could be treated as revision and vide versa and that plaintiff could not prove his case and it was not lawful for the learned trial Court to have decreed the suit of respondent No.1. Likewise, the appellate Court has also committed serious illegality by not allowing the appeal filed by the petitioner and subsequently by not allowing the review application vide which it was prayed that if appeal was not competent the same may be treated as revision. In support of his contentions, places reliance on 2004 SCMR 2265, PLD 2004 Lah. 17; 2000 CLC 334, 1995 CLC 1578, 2007 CLC 1754, 1999 MLD 2202 and PLD Supreme Court of Pakistan 491.

5. Conversely Messrs Mr. Mujtaba Aziz and Muhammad Najeeb Safdar Advocates learned counsel for the respondents vehemently oppose the submissions made at bar by learned counsel for the petitioner and submit that this constitutional petition is not maintainable as before the learned appellate Court respondent No.5 Muhammad Ramzan son of Ahmad Bakhsh was the appellant, who has not assailed the orders, therefore, this constitutional petition filed by Ahmad Bakhsh petitioner is not competent; that Muhammad Ramzan appellant before the learned lower Court has not even been arrayed as respondent in this constitutional petition, therefore, the same is not maintainable as it is bad for non joinder of necessary parties; that there are concurrent findings of facts arrived at by both the learned Courts below. Therefore, this petition is no maintainable; that conduct demonstrated by the petitioner is such, which disentitles him to the equitable relief. Initially, the disposal of the suit before the civil Court was delayed and thereafter no evidence was produced, thus there was no option left with the civil Court except to close the evidence of the defendant/petitioner. Likewise no appeal was competent before the learned lower Court nor the original order vide which evidence was closed had ever been assailed. The learned Additional District Judge, therefore, rightly proceeded to dismiss the appeal; that no review application under circumstances was maintainable, therefore, that too was rightly rejected; that this petition has been filed with mala fide intention and for ulterior motive with the sole purpose to add to the agonies of the respondents and to engage them in protracted frivolous litigation. In support of his contention places reliance upon PI.D 1982 SC 46 to convass that petition can be dismissed for non-joinder of necessary parties. Further relies upon PLD 2006 Lahore 585 and 2007 YLR 1382, 1995 CLC 2020, 2004 SCMR 830 and 2001 SCMR 345.

6. Arguments heard. Record perused.

7. I find that petitioners despite repeated opportunities failed to produce their evidence; therefore, no option was left with the learned trial Court except to close the evidence under Order XVII, Rule 3, C.P.C. which order is un exceptionable;. sufficient evidence is available on the record on the basis whereof the learned trial Judge rightly a proceeded to decree the suit. Likewise, the learned Additional District Judge by upholding the judgment and decree passed by the learned trial court proceeded to exercise the authority vested in him under the law. The case-law referred to by learned counsel for the petitioner is of no avail to him. On the contrary, the case-law relied upon by the learned counsel for the respondents clinches the matter. I may observe here that throughout the proceedings conduct demonstrated by the petitioner is indicative of the fact that he wanted to delay disposal, initially of the suit before learned Trial Court and thereafter the appeal and review application before the learned Additional District Judge, the purpose whereof seems to be to add to the agonies of the respondents. This conduct by itself dis-entitles him from the discretionary relief. There are concurrent findings of facts of both the learned Courts below, which besides being well-reasoned are perfectly in accordance with law and call for no interference in constitutional petition. Therefore, this petition being devoid of any merits is hereby dismissed with costs throughout. M.U.Y./A-254/L Petition dismissed.