2008 PLP 252 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

Instant civil revision assailed judgment/decrees, dated 19-12-2006 and 23-5-2007 passed by the learned Civil Judge and learned Additional District Judge, Mankera, district Bhakkar, whereby while closing the petitioner's right to lead evidence by invocation of provisions of Order XVII, rule 3, C.P.C., his suit was dismissed on account of lack of proof and his appeal failed, respectively.

2. Precisely, relevant facts are that petitioner filed a suit for possession through pre-emption against the vendees/respondents regarding sale of land measuring 2 Kanals situated in Chak No.70-A/ML, Mankera through Mutation No.269, dated 23-6-2004 for a consideration of Rs.2,00,

000. Petitioner pleaded in his plaint that sale of land in favour of the respondents was kept in guarded secret which came to his knowledge on 13-8-2004 in presence of named witnesses, when he instantly performed Talb-e-Muwathibat and thereafter issued notice of Talb-e-Ishhad on 17-8-2004. Petitioner claimed superior pre-emptive right being Shafi Sharik, Shafi Khalit and Shafi Jar.

3. Respondents being defendants in the suit, contested the same by filing their written statement, refuting averments in the plaint. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Learned Civil Judge, seized of the matter, after framing of issued fixed the case for evidence of the petitioner. Case kept on adjourning for one reason or the other. Petitioner produced his witnesses on certain dates but their statements could not be recorded. Ultimately, petitioner was granted final opportunity of producing evidence vide order dated 27-6-2006 and on his failure in this behalf, his right to produce evidence was closed by invocation of provisions of Order XVII, rule 3, C.P.C. on 19-12-2006 and his suit was dismissed for want of proof.

4. Petitioner being aggrieved of the judgment/decree, dated 19-12-2006 and the order closing his evidence, filed an appeal before the learned Additional District Judge but remained unsuccessful, as the same was also, dismissed on 23-5-2007. He thereafter filed instant civil revision for adjournment of concurrent judgments/decrees of the two Courts below. Respondents in response to notice by this Court appeared and were represented through counsel.

5. I have heard the learned counsel for the petitioner and have examined the record, appended herewith. Record revealed that on three consecutive preceding dates to the date on which petitioner was non-situated, petitioner could not produce his evidence but respondents/ defendants or their counsel did not object to the adjournment prayed on any of those occasions. Order dated 19-12-2006 revealed that prior to taking penal action against the petitioner under Order XVII, rule 3, C.P.C., he was not required to himself appear in the witness-box or to produce documentary evidence in his possession. Petitioner had not only examined Zamir Hussain P.W.1 as his witness but also produced postal receipts Exhs.P.1 and 2 and acknowledgement due receipts Exhs.P.3 and 4 in his evidence. He had also appended with his plaint certain documents showing his superior pre-emptive right and dispatch of notice of Talb-e-Ishhad but those were not considered while passing the impugned judgments and decrees which were apparently returned with the observation that suit of the petitioner is dismissed due to lack of evidence. The learned Additional District Judge in his judgment mainly restricted his findings to evaluate applicability of Order XVII, rule 3, C.P.C. but no reference to the evidence/documents on the file has been made. Scan of record revealed that controversy was not correctly put to rest and inapplicable provisions of law, were passed into service to non-suit the petitioner, as adjournment granted in routine would not have invited those provisions in view of judgment by the Honourable Supreme Court in the case of Syed Tasleem Ahmad Shah v. Sajawal Khan and others 1985 SCMR 585 thus the same are not sustainable at law.

6. For the reasons noted above, instant civil revision is bound to succeed and the same is accordingly accepted and the judgments/decrees dated 19-12-2006 and 23-5-2007 passed 'by the learned Civil Judge and learned Additional District Judge, Mankera are set aside, with the result that petitioner is granted one single opportunity of producing his entire evidence, on the date to be fixed by the trial Court, subject to payment of costs of Rs.5,

000. In case of failure of the petitioner to produce evidence on the date so fixed, impugned judgments/decrees shall automatically revive and instant judgment shall stand rescinded. In case of non-availability of the Presiding Officer on the date fixed for evidence of the petitioner, the same shall be recorded by the learned Duty Judge working in his place. Parties are directed to appear before the learned District Judge, Bhakkar for onward entrustment of the suit, for its decision in accordance with law, to any learned Civil Judge competent to hear the same, on 29-11-2007. Parties are left to bear their own costs. S.A.K./M-562/L Order accordingly.