2012 PLP 361 (SCMR)

NASIR-UL-MULK, J.

One, Liaqat Ali, purchased through registered deed dated 28-9-1994 landed property in Tehsil and District, Sialkot, against which two suits for pre-emption were filed, one by Sheikh Khurshid Mehmood Alam, appellant, and the other by Mirza Hashim Baig, respondent No.l. Both the suits were consolidated. The suit of the respondent was dismissed on 24-3-1998 for lack of proof, after his evidence was prematurely closed on the said date, as according to the trial Court he had failed to produce his evidence despite being provided with a number of opportunities. However, the suit of the appellant proceeded and was decreed on 24-2-1999. The respondent filed appeal against dismissal of his suit, which was allowed by the Additional District Judge, while the application of the appellant, for dismissal of the appeal on the ground that the suit of the appellant regarding the same property had already been decreed in his favour and had attained finality, was dismissed. The appellant filed two Revision Petitions before the Lahore High Court, which were dismissed by the impugned judgment dated 10-12-2003. Leave to appeal was granted on 31-1-2007 in following terms:-- "After hearing the learned counsel for the parties, we grant leave to appeal to consider whether penal provisions of Order XVII, Rule 3 were attracted only where on an earlier occasion the time for production of evidence or for doing any other act for progress of the case was allowed at the request of a party and not otherwise."

2. Mr. Gul Zarin Kiyani, Senior Advocate Supreme Court, appearing for the appellant, submitted that the Trial Court did not make any reference to Order XVII, Rule 3, C.P.C. while closing the evidence of the respondent/plaintiff and the appellate as well as the High Court had proceeded on the erroneous premise that the trial Court had invoked the said provision. He contended that when the respondent/plaintiff failed to produce the evidence despite repeated adjournments for the purpose, the trial Court proceeded under Order XVII, Rule 3, C.P.C. under which the plaintiff's evidence could have been closed even if the earlier adjournment was not granted at his request. In support of his arguments the learned counsel made reference to judgments of the High Courts, namely, PIRZADA AMIR HASSAN v. MRS. SHAMIM SHAH NAWAZ (1984 CLC 3080), SHAHNAWAZ v. AMIR MUHAMMAD (PLD 1989 LAH. 209) and GHULAM QADIR ALIAS QADIR BAKHSH v. HAJI MUHAMMAD SULEMAN (2002 CLC 1111). He further submitted that since the decree passed in favour of the appellant regarding the same subject matter had attained finality, as it has not been challenged, the suit of the respondent cannot proceed further. The learned counsel also pointed out that the respondent/plaintiff in his plaint had not mentioned the date, time and place of making of Talb-e-Muwathibat, which is evident from the order dated 1-10-1997, whereby his application for amendment in the plaint to incorporate such particulars was dismissed. That as now it has been settled that omission of such particulars in the plaint would be fatal to a suit of pre-emption, he contended that it would be a futile exercise to allow the respondent's suit to proceed and this Court may in exercise of its powers under Article 187 of the Constitution dismiss the respondent's suit.

3. Malik Amjad Pervaiz, Advocate Supreme Court, representing respondent-1, relied upon the judgment of this Court in the case of QUTUB-UD-DIN v. GULZAR (PLD 1991 SC 1109), also cited by the High Court in the impugned judgment, to contend that the respondent's suit was not liable to be dismissed on account of non-production of evidence under Order XVII, Rule 3, C.P.C. as the adjournment sought on the earlier date was not on the request of the respondent. As to the omission of the necessary particulars regarding making of Talb-e-Muwathibat in the plaint, the learned counsel contended that this issue be left to be decided by the trial Court, where the suit is pending.

4. Leave to appeal was granted only to consider whether the trial Court could proceed under Order XVII, Rule 3, C.P.C. against the plaintiff when the adjournment for the date was not earlier sought at the behest of the plaintiff. The consistent view has been that expressed in QUTUB-UD-DIN v. GULZAR (ibid) by this Court that the evidence of a party cannot be closed under Order XVII, rule 3, C.P.C. for non-production of evidence where the case on the previous date was not adjourned at the request of such party. The learned counsel for the appellants did not referred to any contrary view in the judgments cited by him. Even in the case of AMIR HASSAN v. MRS. SHAMIM SHAH NAWAZ (ibid) the High Court had indirectly affirmed the same view while holding that "evidence under Order XVII, rule 3, C.P.C. of the plaintiff could be closed only when time was granted to the party upon his request". The argument that the case be considered under Order XVII, rule 1(3), C.P.C. and not under rule 3 does not fall within the scope of the leave granting order. Even that argument has no merit. Rule 1(3) of Order XVII, C.P.C., as amended by the Lahore High Court, provides that 'where sufficient cause is not shown for the grant of an adjournment the Court shall proceed with the suit forthwith', whereas rule 3 of the said Order provides that when the party to the suit fails to produce his evidence, 'the Court may, notwithstanding such default, proceed to decide the suit forthwith'. In the present case the trial Court proceeded to decide the suit of the respondent/plaintiff, when he failed to produce his evidence and dismissed the suit. Although the trial Court did not refer to any provision of Order XVII under which plaintiff's evidence was closed, but since his suit was decided and dismissed, the Court had proceeded under rule 3 of Order XVII, C.P.C.

5. As to the question of omission of the plaintiff/respondent to mention the particulars of the time, date and place of making Talb-e Muwathibat, we need not dilate upon the question as the same falls within the ambit of the trial Court where the suit is still pending. The question can be raised before the trial Court. We also are mindful of the fact that the contest presently is between the two rival preemptors and not between the preemptor and the vendee. We also do not have the plaint of the appellant filed in the suit to examine whether such particulars were mentioned therein. We leave this question to be determined by the trial Court. This Court's jurisdiction under Article 187 of the Constitution to pass an order for the purpose of doing complete justice is used sparingly and not when a legal remedy is available to a party praying for the exercise of the power.

6. As to the fact of the decree in favour of the appellant the High Court had rightly placed reliance upon the case QUTUB-UD-DIN v. GULZAR (ibid) and it would not make any difference whether or not the decree in favour of the appellant came under challenge. The suits filed by the plaintiff and the respondent were consolidated and thus the same ought to have been decided together, as both plaintiffs prayed for decree on similar basis regarding the same subject matter.

7. In view of above, the appeal is dismissed with no orders as to costs. S.A.K./K-10/SC Appeal dismissed.