P L D 2003 Peshawar 60 (PLP)

‑‑‑‑O. XVII, Rr.1(3) & 3‑‑‑Adjournment without sufficient cause‑‑‑Dismissal of suit‑‑‑Many opportunities were given to the plaintiff to produce his evidence but he failed to produce the same despite the fact that 17 adjournments were sought by him‑‑‑Trial Court, after giving warning to the plaintiff, dismissed the suit under O.XVII, R.3, C.P.C.‑‑‑Contention of the plaintiff was that the Trial Court had to proceed under O.XVII, R.1(3), C.P.C.‑‑‑Validity‑‑‑Trial Court was not debarred even under O.XVII, R.1(3), C.P.C. for dismissing the suit after it. had been made impossible for the Court by the defaulting party to proceed with the matter by failing to bring any material on record‑‑‑Suit was rightly dismissed by Trial Court in circumstances. (c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O. XVII, R. 3 & S.115‑‑‑Failure to produce evidence‑‑‑Dismissal of suit‑‑‑Despite having been given 17 adjournments for production of evidence, plaintiffs failed to produce their evidence over a period of four years‑‑‑Trial Court dismissed the suit for non‑production of evidence and appeal was dismissed by Appellate Court ‑‑‑Validity‑‑‑Plaintiffs had made it impossible for the Trial Court to make further progress with the suit‑‑‑Trial Court had no other option but to close their evidence and dismiss the suit‑‑ No illegality or material irregularity was found by High Court in concurrent findings of the Courts of competent jurisdiction‑‑‑ Revision was dismissed in limine. Abdul Latif Afridi for Petitioners. Petitioners/plaintiffs filed suit in the Court of learned Senior Civil Judge/Aala Illaqa Qazi District. Swat seeking declaration to the effect that they were owners of the property mentioned in the heading of the plaint. Perpetual injunction restraining the respondents to get the property transferred in their name and to interfere into the ownership of possessory rights of the petitioner was also sought. The said suit was resisted by respondents/defendants by filing written statement. The learned trial Court directed the petitioners/plaintiffs to produce evidence on 27‑1‑1998. On the said date the petitioners/plaintiffs did not produce evidence as directed by the Court, hence the case was adjourned to 30‑9‑1998. It is worth mentioning that the case had been adjourned for 17 dates for the evidence of the petitioners/plaintiffs, but they failed to produce the same. The record reveals that on 27‑9‑2001 the learned trial Court had given final opportunity to the petitioners/plaintiffs to produce evidence and they were put on notice that in case their evidence was not available on the next date, they would be proceeded under Order 17, Rule 3, C.P.C. The case was posted to 6‑10‑2001. On this date also adjournment was sought by the petitioners/plaintiffs and as a final chance the date was adjourned to 8‑10‑2001 with notice under Order 17, Rule 3, C.P.C. The last opportunities provided and warnings given by the learned trial Court did not have any affect upon the petitioners/plaintiffs. On 8-10‑2001 again the evidence of the petitioners/plaintiffs was absent, therefore, the learned trial Court while proceeding under Order 17, Rule 3, C.P.C. dismissed the suit for non production of evidence.

2. The perusal of the record annexed with the revision petition shows that the petitioners/plaintiffs were not only, negligent in producing their evidence but they did not care about the last chances provided and warnings given to them to proceed under Order 17, therefore, the order passed by the learned trial Court closing the evidence of the petitioners/plaintiffs was unexceptionable.

3. The argument of the learned counsel for the petitioners that the Court should have proceeded under Order 17, Rule 1(3), C.P.C. instead of Order 17, Rule 3, C.P.C. loses its significance. The adjournments were made on the request of the petitioners and they failed to comply with the order of the learned trial Court for producing their evidence. Even otherwise Order 17, Rule 1(3), C.P.C. does not debar the Court from dismissing the suit after it has been made impossible for the Court by the defaulting party to proceed with the matter by failing to bring any material on record. In the instant case, petitioners were directed to produce their evidence in the year 1997 and over a period of 4 years they failed to bring any evidence on record, therefore, they practically made it impossible for the learned trial Court to further progress with the suit. The learned trial Court, therefore, had no other option but to close their evidence and dismiss the suit. I have not been able to find out any illegality or any material irregularity in the impugned concurrent findings of the Courts of competent Jurisdiction. Resultantly, the revision petition is dismissed in limine. Q.M.H./665/P Revision dismissed.