2005 PLP 74 (MLD)

Date of hearing: 16th January, 2003. This single judgment shall decide the present revision petition (C.R. No.2647 of 2001) and the connected petitions (C.R. No.2648 of 2001 and C. R. No. 2649 of 2001), as common, questions of law and facts are involved in all the petitions and the impugned judgments, in all the revision petitions, are identical.

2. All the revision petitions have been directed against the judgments dated 17-11-2001, whereby the learned Additional District Judge allowed respondent's appeals and remanded the cases to the learned trial Court for' their proper decision after setting aside the judgments and decrees dated 16-6-2002, passed by the learned Civil. Judge, through which he dismissed the suits of the respondents by closing his right to produce evidence under Order XVII, rule 3, C.P.C.

3. Briefly stated, the facts relevant for the decision of the present revision petitions are that the respondent filed three different suits for pre-emption, in respect of properties mentioned in the respective plaints, against the petitioners before the learned Civil Judge, which were contested by them by way of filing written statements, thereby controverting the contents of the plaints. Learned Civil Judge framed the necessary issues and fixed the cases for recording the evidence, but as the respondent failed to produce witnesses uptil 16-6-2001, therefore, the learned Civil Judge, while invoking the provision of Order XVII, rule 3, C.P.C., closed respondent s evidence and consequently dismissed the suits, vide judgments and decrees of even date. Seemingly aggrieved from the said judgments, the respondent filed three separate appeals before the appellate forum and his appeals were-accepted by the learned Additional District Judge, vide judgments dated 17-11-2001, who, while, setting aside' the judgments and decrees of, the learned Civil Judge, remanded the suits to the learned trial Court for fresh decision, hence, the present revision petitions.

4. Learned counsel for the petitioners has vehemently contended that the, impugned judgments were rendered by the; learned lower Appellate Court in complete oblivion of the record of the case inasmuch as it failed to take into consideration that the issues were framed, on 5-1-1998, the suits were firstly fixed for recording evidence on 28-2-1998 and thereafter 41 opportunities were granted to the respondent but he failed to lead his evidence, therefore, according to the learned counsel, the impugned judgments are not sustainable in law and are liable to be set aside. In support of his contention he has relied upon Ajab Khan v. Karim Industries and others (PLD 1980 Peshawar 259), Allah Ditta and others v. Hafiz Zahoor Ahmad and another (1993 CLC 1359), Syed Manzoor Hussain Shah and 15 others v: Allah Bachaya Khan and 5 others 1986 PLC 1813), Chairman District Sargodha v. Government of the Punjab through District Collector, Sargodha and another (1993 MLD 930), Muhammad Mehmood v. Ghulam Rasool and another (1987 SCMR 952) and Moeen-ud-Din and others v. Sabghatullah and others (1985 S MR 1103). Conversely, the learned counsel for the respondent, while admitting that numerous opportunities were granted to the respondent, his supported the impugned judgments and submitted that on the preceding two dates suits were not adjourned at the request of the respondents a d they were postponed in routine, as the learned trial Court was on leave, therefore, on the subsequent date, no penal action could have been taken.

5. In view of the respective contentions raised by both the learned counsel, I have examined the record and find that issues were framed on 5-1-1998, the cases in the first place, were adjourned to 28-2-1998 for recording the evidence of the plaintiff/respondent and thereafter numerous opportunities were granted to the respondent for the said purpose, including last opportunities, but the respondent could not produce witnesses. On the preceding two dates of hearing, the cases were, however, not adjourned at the instance and request of the respondent. It would be advantageous to reproduce the orders passed by the learned trial Court on 12-4-2001, 28-4-2001 and 16-6-2001. It flows from the above, that on the previous two dates of hearing, the learned Civil Judge did not hold the Court; he was on leave and the case was adjourned in routine either by the staff of the Court or by the learned Duty Judge. The fact remains that neither, on 12-4-2001 nor 28-4-2001, the respondent requested for the adjournment of the suits and, they were adjourned for recording the evidence of the respondent in routine. As the learned Civil Judge was on leave, on, 12-4-2001, therefore, the suits were not adjourned at the instance of the respondent and no such request was even noted in the order-sheet. Similarly on 28-4-200.1, the learned Civil Judge was busy in departmental course, therefore, the cases were adjourned to 16-C-2001, in routine, without recording the request of the adjournment by the respondent. On the succeeding date, i.e. on 16-6-2001, the order, closing respondent's right to produce evidence, was passed. As noted above, on previous two dates of hearing, the cases were not adjourned fort recording the evidence of the respondent at respondent's request, therefore, closure of the evidence of the respondent, on succeeding date, purportedly in exercise of powers under Order XVII, rule 3, C.P.C. was not warranted in law.

6. It has been held in Qutab-ud-Din v. Gulzar and 2 others (PLD 1991 SC 1109) and Jindwadda and others v. Abdul Hamid and another (PLD 1990 SC 1192) that dismissal of suit under Order XVII, rule 3, C.P.C., for non-production of evidence was not warranted in law; as the case was not adjourned, on the previous date, at the request and instance of the appellant. In the aforesaid cases, while dilating upon the similar issues, as involved in the present cases, the apex Court of his country has laid down the principle that if the case was not adjourned on the request of the plaintiff on the last date, then it would not be a fit case for invocation of the provisions of Order XVII, rule 3, C.R.C. This Court in a case reported as Pakistan Burmah Shell Ltd. v. Tariq Brothers (1997 CLC, 761), followed the principle laid down by the Hon'ble Supreme Court of Pakistan in the afore-noted cases and held that the provisions of Order XVII, rule 3, C.P.C. for closing of evidence, cannot be invoked on a date, which was not fixed at the request of the defaulting party.

7. Now, coming to the cases relied upon by the learned counsel for the petitioner, I have perused all' the judgments referred to above and find that the questions involved in the present revision petitions and the principle decided in the afore-noted two judgments of the Supreme Court of Pakistan Qutab-ud-Din v. Gulzar and 2 others (PLD 1991 SC 1109) and Jindwadda and others v. Abdul Hamid and another (PLD 1990 SC 1192) was neither in issue nor decided in any of those cases. The said cases proceeded according to their own facts/merits and in those cases, suits were adjourned at the request of the parties and thus, the said judgments have no applicability in the facts of the present cases. None of the cases relates to the question as to what would be the effect of the case, if on the previous date the case was not adjourned at the request and instance of the plaintiff, which is the crucial and only question involved in the present cases.

7. I have examined the impugned judgments and find that the same are legal, un-exceptionable, apt to the facts and circumstances of the case and do not call for any interference by this Court in exercise of the revisional jurisdiction, thus, the same are maintained.

8. Upshot of the above discussion is that all the revision petitions are devoid of any merits and the same are dismissed leaving the parties to bear their own costs. H.B.T./H-41/L Revision petitions dismissed.