2013 PLP 883 (YLR)

RAUF AHMAD SHEIKH, J.

The petitioner has assailed the vires of judgment dated 6-4-2009 passed by the learned Additional District Judge, Rawalpindi, whereby an appeal filed by him against the order dated 19-11-2008 of the learned Civil Judge, closing his evidence under Order XVII, Rule 3, C.P.C. was dismissed.

2. The facts in brief as emerge on perusal of the record are that the respondent filed a suit for possession through pre-emption in respect of house fully described in para No.2 of the petition on payment of Rs.3,00,000.

3. This suit was contested by the defendant/petitioner.

4. After framing of the issues, the evidence of the plaintiff/respondent was recorded on 11-10-2006 and thereafter the suit was fixed for evidence of the defendant/petitioner. Finally, his evidence was closed under Order XVII, Rule 3, C.P.C. on 19-11-2008.

5. The learned counsel for the petitioner has contended that on 19-11-2008 petitioner's father was seriously sick and admitted in the Hospital so an application was submitted but same was disallowed and the learned trial Court closed the evidence under Order XVII, Rule 3, C.P.C. in haste. It is urged that on 6-9-2008 i.e. preceding date of hearing, the learned Presiding Officer was on leave and on 11-6-2008, the evidence was available but it was not recorded due to request for adjournment made in this regard, which was not made by the petitioner and even on the date of hearing prior to the said date, the learned presiding Officer was on leave.

6. The learned counsel for the respondent has vehemently opposed the petition. It is contended that an order under Order XVII Rule 3 C.P.C. was not appealable and as such the appeal filed by the petitioner before the learned District Court would be deemed to be a revision petition, which has been dismissed by the learned Additional District Judge and as the second revision is not maintainable so this revision petition merits dismissal. It is also urged that the petitioner was given sufficient opportunities but he failed to produce the evidence and as such no ground was available to grant further opportunity and the order passed by the learned trial Court and the learned ADJ both do not call for any interference. In support of the contentions raised reliance is placed on 1994 SCMR 2265, PLJ 2011 Peshawar 83 and 2010 CLC 1405 (Lahore).

7. It is true that no appeal lies against an order passed under Order XVII, Rule 3, C.P.C. as is clear from Order XLIII, Rule 1, C.P.C. and that the appeal filed by the petitioner was not competent and the proper course for the learned ADJ was either to dispose it of on the date when the memorandum of appeal was presented or to convert it into revision petition and then to decide the same as such. The said appeal would be deemed to be a revision petition for all intents and purposes. It is true that second revision petition is not maintainable but the fact of the matter remains that the petitioner had submitted an application for adjournment specifically mentioning that his father was seriously ill and was admitted in the Hospital. The Discharge Card of the Hospital shows that he was admitted on 15-11-2008 and discharged on 15-12-2008 so a reasonable ground was available for grant of an adjournment in view of Order XVII Rule 1(3), C.P.C. as amended by this Court. The provisions of Order XVII Rule 3, C.P.C. were not attracted in view of the contents of the said application. Even otherwise, the record reveals that on the preceding date of hearing i.e. 19-11-2008 the learned Presiding Officer was on leave. On 11-6-2008, which was date of hearing prior to 6-9-2008, the evidence was present but same was not recorded due to a request for adjournment. It is not clear that request for adjournment was made by the petitioner or respondent. Again on 25-4-2008, the date prior to the above mentioned date, the learned Presiding Officer was on leave. This resume of the order sheet vividly reveals that sufficient opportunity was not given to the defendant/petitioner to produce the evidence. Valuable rights of the parties were at stake. Such hasty and ill-founded orders cause miscarriage of justice and must be avoided in administration of justice. One cannot be knocked out through the orders, which are not warranted under the law. The technicalities of law cannot hamper the course of justice. If the learned ADJ had not converted the appeal into revision and disposed of the same as such there is no bar on the powers of this Court to treat the revision petition as writ petition in the given circumstances of the case, as this Court is responsible for supervision of the subordinate courts in order to ensure transparent administration of justice in the Province. This court cannot ignore such patently illegal and wrong order. For the reasons supra, the revision petition is accepted by converting the same into writ petition subject to payment of Rs.5,000 as costs. The learned trial Court would give one more opportunity to the petitioner/ defendant to produce the evidence and then decide the matter in accordance with law. The learned trial Court would fix the date of hearing for this purpose by keeping in view the convenience of the learned counsel for the parties. KMZ/J-10/L Petition allowed.