2016 PLP 1524 (MLD)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Precisely the facts for disposal of the instant civil revision are that present petitioner brought an application under section 12(2) of the Civil Procedure Code of 1908 for setting aside of the judgment and decree dated 17.5.1999 passed by the learned Civil Jude 1st Class, Sahiwal whereby suit for specific performance of agreement to sell dated 29.7.1998 filed by the respondents was decreed on the basis of alleged compromise. The said application was resisted by the decree holders and the learned trial court captured the disputed area of facts by framing certain issues on 09.3.2000. Thereafter the petitioner was invited to lead his evidence but he remained fail and the learned trial court while invoking the provisions of Order XVII Rule 3 of the Civil Procedure Code of 1908 closed the right of the petitioner to lead his evidence vide order dated 16.1.2002 and dismissed the lis. Being aggrieved, the petitioner filed a revision petition before the learned Additional District Judge, Sahiwal which was returned for want of pecuniary jurisdiction vide order dated. 20.7.2002 and the instant civil revision has been filed by the petitioner before this Court.

2. Arguments heard and record perused.

3. The case diary maintained by the learned trial court, copy whereof is appended with the instant civil revision, reveals that the petitioner was granted various opportunities for production of his evidence, but he failed to produce the same. The petitioner, in addition to routine dates, also requested for adjournment to produce his evidence on 23.5.2000, 28.6.2000, 27.7.2000, 25.9.2000, 02.12.2000, 25.1.2001, 6.2.2001, 16.4.2001 and 17.9.2001, but he remained fail to produce any evidence. Even on the last three dates adjournments were granted to the petitioner on his request with the warning that it would be the last opportunity to produce his evidence, but case was adjourned while showing sympathetic attitude in spite of that the petitioner time and again failed to produce his evidence. Ultimately on 29.11.2001, the case was again adjourned on the request of the petitioner for 16.1.2002. On the said date as well the position remained the same and the learned trial court closed the right of evidence of the petitioner and dismissed the application under section 12(2) of the Civil Procedure Code of 1908 filed by the petitioner. The attitude of the petitioner shows that he remained indolent before the learned trial court during the proceedings of the application under section 12(2) of the Civil Procedure Code of 1908 and the learned trial court was left with no other option except in invoke the provisions of Order XVII Rule 3 of the Civil Procedure Code of 1908 as it cannot be left on the choice of the parties to choose the time for production of evidence according to their choice, but the case proceedings have to be controlled by the Court according to its Roster and the petitioner having already been granted more than sufficient opportunities, is not entitled to any further leniency by this Court, who has rightly been knocked out for want of evidence while invoking the provisions of Order XVII Rule 3 of the Civil Procedure Code of 1908. Reliance in this respect is placed upon the judgments reported as Mian Abdul Karim v. Province of Punjab through District Officer (Revenue) Lodhran and 5 others (PLD 2014 Lahore 158) and Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others (2014 SCMR 637).

4. The contention of learned counsel for the petitioner that the petitioner was suffering from cancer, who was not able to appear before the learned trial court on account of his chronic ailment and may be allowed at least one more opportunity to lead his evidence is without any substance. The case law referred by him reported as Sheikh Khurshid Mahboob Alam v. Mirza Hashim Baig and another (2012 SCMR 361), Syed Tasleem Ahmad Shah v. Sajawal Khan etc. (1985 SCMR 585), Qutab ud Din v. Gulzar and 2 others (PLD 1991 SC 1109), Haji Muhammad Ramzan Saifi v. Mian Abdul Majid and others (1986 SC 129), Muhammad Hussain and 5 others v. Akram Baig and 3 others (PLD 1988 Lahore 183), Mst. Bilquis Fatima and 3 others v. Nasim Ahsan and 2 others (1996 SCMR 1057), Muhammad Ramzan v. Abdul Majeed and 4 others (2009 CLC 386), Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584), Taj Muhammad Khan and others v. Bakht Shery and others (2003 CLC 1176), Muhammad Shafiq v. Mst. Resham Bibi and 3 others (PLD 2001 Lahore 206) and Messrs Friends Vegetable Ghee Mills (Private) Ltd. v. Privatization Commission, Ministry of Finance, Government of Pakistan through Chairman and 2 others (2000 CLC 1955) runs on different footings. If it is admitted that the petitioner was suffering from ailment even then the petitioner could have produced the other witnesses as well as documentary evidence to satisfy the Court that he was vigilant in pursing his case with due care. He even did not appoint any attorney to make a statement on his part or never made a request to the learned trial court for appointment of local commission to record his statement at his residence. The learned trial court had already showed patience for a period of two years and adjourned the case during the said period mostly on the request of the petitioner, but despite availing sufficient opportunities the petitioner remained fail to produce a single witness or document in his evidence and the learned trial court was quite justified to pass the impugned order for dismissal of the lis for want of evidence. This Court is cognizant of the principle that law favours disposal of cases on merits, but at the same time the other famous principle cannot be ignored that the law helps the vigilants and not the indolents and the Courts are not supposed to go behind the litigants, who are not interested in disposal of the lis on merits.

5. The learned counsel for the petitioner is unable to point out any illegality or perversity committed by the court below while passing the impugned order. The instant civil revision having no force and is dismissed. RR/M-227/L Revision dismissed.