2017 PLP 307 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned Civil Revision Application, applicant Haji Chacher has impugned judgment dated 16.01.2009, passed by learned District Judge, Ghotki whereby Civil Appeal No.24 of 2008, Re-Haji v. Mst. Saindini and others was dismissed, and the judgment dated 16.4.2008 and decree dated 22.04.2008, passed by the Court of learned Civil Judge, Ubauro in F.C. Suit No.48 of 2003 were maintained.

2. Relevant facts narrated in instant revision application are that applicant Haji Chachar purchased agricultural land bearing S.No.84 (05-32) acres to the extent of 33-paisa share, 1-36 1/2 ghuntas from S.No.83/9 to the extent of 20-paisa share and area of (1-32) acre total area (3-28-1/2) acres situated in Deh Ranwati, Taluka Ubauro from late Saindini in the sum of Rs.38,000/- and out of which Rs.30,000/- were received by her on 16.06.1978 in presence of witnesses and it was agreed that remaining amount of Rs.8000/- will be paid when Khata will be mutated in favour of applicant and such agreement was reduced in writing on 16.06.1978 and possession was also handed-over to applicant and since then he has been enjoying possession of suit land and also paying land revenue to the Government. Mst. Saindini expired by leaving her alone legal heir namely Mst. Jeewan daughter of Allah Jiwayo Chachar. Applicant approached Mst. Jeewan and her male members for transfer of Khata but she kept him on false hopes and recently he came to know that Mst. Jeewan has been negotiating to sell out the suit property to some stranger person, therefore applicant went to Mst. Jeewan on 25.06.2003 and asked her for transfer of Khata in his favour but she refused to do so, hence instant suit.

3. Respondent No.1(a) Mst. Jeewan filed her written statement on 27.08.2003, and thereafter filed amended written statement on 24.06.2004, whereby she denied the averments of the plaint and raised legal pleas regarding maintainability of the suit. She further denied the sale of subject land by her mother Mst. Saindini to the applicant as well as execution of sale agreement and delivery of possession of the land. Suit filed by applicant is barred by limitation, hence same is liable to be dismissed.

4. Learned counsel for applicant contended that the suit filed by applicant, was dismissed under Order XVII, Rule 3, C.P.C. due to failure of applicant to lead his evidence; that civil controversy should be decided on merits rather than on technicalities; that both the Courts below have failed to consider the specific circumstances of suit properly, hence concurrent findings may be set-aside and applicant may be provided opportunity to lead his evidence.

5. While controverting the above submissions, learned counsel for respondent contended that applicant has deliberately failed to adduce his evidence and sufficient time was granted by the learned trial Court with last and final chances, hence learned trial court has rightly dismissed the suit and applicant has failed to produce any good explanation for interfering with concurrent findings of the Courts below. Learned counsel relied on case of Mahmood v. Ghulam Rasool (1987 SCMR 952), Muhammad Amir Qasim v. Muhammad Idress (1988 SCMR 549), Fateh Sher v. Muhammad Zubair (2003 SCMR 797), Ghulam Qadir alias Qadir Bux v. Haji Muhammad Suleman and 6 others (PLD 2003 SC 180), Aftab Iqbal Khan Khichi and another v. M/s United Distributers Pakistan Ltd., Karachi (1999 SCMR 1326).

6. Heard arguments advanced by learned counsel for the parties and examined the material available on record prudently.

7. Perusal of record emanates that applicant filed suit for Specific Performance of Contract and Permanent Injunction against the respondents on 30.06.2003 in respect of sale agreement which was executed on 16.06.1978 between the applicant and late Mst. Saindini. After service of summons respondents filed written statement on 24.04.2004. Learned Incharge District Attorney on behalf of the official respondents, adopted the same written statement filed by respondent No.1(a) vide statement dated 27.08.2003. Learned trial Court framed 6 issues out of pleadings of the parties on 15.6.2006 and case was adjourned for the evidence of applicant but he failed to adduce his evidence despite grant of last and final chances and imposition of cost upon him for failure to lead evidence. Perusal of record reflects that applicant had moved adjournment applications on 16 dates of hearing i.e. 09.09.2006, 10.08.2006, 11.01.2007, 27.01.2007, 22.02.2007, 22.03.2007, 19.04.2007, 10.05.2007, 31.05.2007, 06.06.2007, 27.06.2007, 29.09.2007, 31.10.2007, 13.12.2007, 17.01.2008 and 15.02.2008. Indeed, applicant has failed to lead his evidence since 09.09.2006 till 15.02.2008, and matter was being adjourning with specific directions to the applicant to adduce his evidence and in this regard, last and final opportunities were afforded and even cost was also imposed upon the applicant, thus learned trial Court has adopted all the possible measures to compel the applicant to lead his evidence. Conversely, the demeanor of applicant towards the proceedings reflects that despite of adequate and sufficient chances, he was not serious to pursue his cause and had failed to appear before the trial Court to step in witness box as well as produce his witnesses by availing advantage of the many opportunities provided to him by the trial Court. In such circumstances, the trial Court was left with no option but to close side of applicant under Order XVII, Rule 3, C.P.C. Thus, trial Court while exercising jurisdiction under Order XVII, Rule 3, C.P.C. has not committed any illegality but on the contrary was entirely justified in closing applicant's side. It is also well settled that law always favours the vigilant and not indolent who is not serious to pursue his cause. While dealing with the disposal of suit under Order XVII, Rule 3, C.P.C., the prime duty of the trial Court is to afford adequate opportunity to the concerned party to establish its claim by adducing evidence supported with relevant and necessary documents and if party fails to avail such opportunity, the trial Court is fully competent to decide the fate of the suit under Order XVII, Rule 3, C.P.C.

8. Considering the above facts and circumstances, applicant has failed to point out any illegality or infirmity committed by the learned Trial Court as well as learned Appellate Court while passing impugned judgments, which do not call for any interference by this Court. Consequently, concurrent finding passed by both the Courts below are maintained and instant Civil Revision Application stand dismissed being non-maintainable under the law. ZC/H-22/Sindh Revision dismissed.