1999 PLP 1195 (CLC)

Compendium of facts, giving rise to instant revision petition, is that, land measuring 138 Kanals and 6 Marlas, situated in Village Shadman, Tehsil and District Sheikhupura was purchased by the respondents in the year 1985. Pursuant to sale‑deed, registered on 13‑3‑1985, Mutation No.187 was duly sanctioned in their favour on 3‑8‑1985.

2. Transaction, however, involved the parties into vortex of litigation. Third suit, in the series, resulted/culminated into an ex parte decree passed on 27‑5‑1989. For setting aside the same, an application under section 12(2) and Order IX. Rule

13. C.P.C. was moved/resorted to by the respondents applicants, whose, evidence was closed by the application of provisions of Order XVII, Rule 3, C.P.C. As a sequel thereto, petition was rejected/turned down on 30‑6‑1992. by learned Civil Judge, seized of the matter.

3. It was successfully challenged in appeal, which, was allowed and the case was remitted to learned trial Court for its decision afresh in accordance with law after affording another opportunity to respondents/applicants to produce their evidence, subject to payment of Rs.400 as costs and conclusion of evidence of both the sides.

4. Such remand order passed on 3‑1‑1993 by an Additional District Judge, Sheikhupura has been assailed and called in question in instant revision petition on the grounds enumerated in paragraph 8 thereof.,

5. Same have been reiterated to stress that, as a matter of fact, learned trial Court, had been left with no alternative and option, but, to invoke penal' provisions of Order XVII, Rule 3, C.P.C. because of vivid negligence of respondents/applicants. With reference to numerous opportunities; availed by them i.e. respondents/applicants, it has been remarked that they had become accustomed to beg and ask for adjournments for adducing evidence and the Court continued to grant liberally, till, it thought of showing no further indulgence in the matter and elected to close the door and proceed in the case. Further opportunity by remand order has been lambasted with the assertion that, in no way, respondents/appellants could be permitted to thrive on the strength of their own lapses and consequences of their default could not be undone in that manner. Also it has been impressed that no concession could be accorded to such indolent and idle litigants. Inter alia, it has been argued that not only material irregularity amounting to illegality, but also, faux‑pass was committed by learned Additional District Judge in an appeal against rejection of incompetently instituted application under section 12(2) of Civil Procedure Code. Reliance has been placed upon Muhammad Aslant v. Karam Illahi and another PLD 1979 Lah. 838, S. Irshad Hussain and another v. Azizullah Khan and another 1987 SCMR 150, Muhammad Sardar v. Fauji Fertilizer and others 1993 CLC 696, Muhammad Ashraf v. Mushtaq Ahmad and another 1987 CLC 2390, Siraj Din v. Lahore Development Authority and others 1992 CLC 102 to urge acceptance of revision petition.

6. Conversely, order, sought to be impeached and set at naught, has been acclaimed to be, not only, correct in all respects, but also in consonance with law. Inter alia, it has been contended that provisions of Order XVII, Rule 3, C.P.C. were neither attracted to the facts of the case nor could be invoked in the proceedings of an application. Illuminating observations made in Messrs Raheem Steel Re‑Rolling Mills and 4 others v. Messrs Karim Aziz Industries (Pvt.) Ltd. 1988 CLC 654 have been quoted in this context.

7. Impugned order seems to have been passed in wake of safe administration of justice. Also it goes without saying that penal provisions can only be invoked, if delinquent party is guilty of contumacy and obduracy. Mere A observation of "loosing of interest" by a party, whose valuable rights are involved in a property worth lacs, could hardly justify invocation of harsh provisions, applicability whereof, was correctly depreciated in the background of litigation, undoubtedly, having chequered history. It could not be countenanced under any canon of law. As such same was rightly struck down by learned Appellate Court, who, in no way, seems to have fallen in ignoratio elenchi in passing the order, complained of.

8. Rather the same is apt, in face of somewhat perfunctory proceedings by learned transferee Court; in relation to service of notice upon respondents applicants, in particular, after transfer of the matter from the Court of Ch. Nab,. Ahmad, learned Civil Judge. In any event, such proceedings cannot be taken to be transparent and smack of non‑observance of provisions of section 24‑A, C.P.C. Lamentation in this behalf cannot be taken to be wholly without substance, glossed over and, thus, allowed to go as cry in the wilderness.

9. Be that as it may, section 115, Civil Procedure Code, applies to cases, involving illegal assumption, non‑exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which, do not, in any way, affect the jurisdiction of the Court, no matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction. As erroneous conclusion of law or fact is liable to be corrected in appeal, but, revision will not be competent on such a ground, unless in arriving at such conclusion an error of law, has been e committed.

10. Neither any such aspect has been put forth or highlighted nor is seemingly available so as to entail provisions of section 115, C.P.C., which thus, can neither come into play nor pressed into service. Even maintainability of instant "revision" is questionable in terms of provisions of law embodied in Order XLIII, Rule 1(u), C.P.C. Order sought to be impeached and set at naught, is accordingly unexceptionable and unassailable as the same neither appears to suffer from any infirmity nor perversity or arbitrariness. By no stretch of imagination, it can be taken to be fanciful.

11. Viewed from any angle, revision petition merits outright dismissal and is hereby dismissed. Q.M.H./M.A.K./R‑81/L Revision dismissed.