P L D 2011 Lahore 156 (PLP)

IJAZ-UL-AHSAN, J.

This petition arises out of judgment dated 3-5-2005 passed by an Additional District Judge at Jhang. Through the impugned order a revision petition filed by the respondents was allowed to adduce their entire evidence oral as well as documentary, subject to payment of Rs.5,000 as costs.

2. On the basis of two agreements to sell dated 15-11-1994 and 9-10-1995 executed by father of respondents Nos.2 to 5 and respondent No.6, respectively, in favour of the petitioner regarding the property in dispute, a suit for declaration/specific performance of contract was filed by the petitioner on 5-11-1995 in the civil court at Jhang. During the course of trial, on 5-1-1998, the parties agreed to the appointment of a referee for resolution of their dispute. Malik Arshad son of Chiragh pehlwan was appointed as referee by the court. On 7-1-1998, he made a statement in favour of the petitioner, in consequence of which his suit was decreed.

3. On 9-2-1998, respondent No.1 moved an application under section 12(2), C.P.C. for setting aside the judgment and decree dated 7-1-1998 passed in favour of petitioner. The application in question was contested. The trial Court framed as many as four issues and called upon the parties to adduce their evidence. Despite various opportunities granted to the respondents for production of evidence, they failed to produce the same. Ultimately the trial Court dismissed the application of the respondents by relying on the provisions of Order XVII, Rule 3, C.P.C. vide its order dated 27-10-2004.

4. Respondent No.1 filed a revision petition before the learned Additional District Judge, Jhang, who accepted the same vide order dated 3-5-2005. The order dated 27-10-2004 was set aside, the matter was remanded to the learned trial Court for decision afresh after granting one more opportunity to the respondent to produce oral as well as documentary evidence, subject to payment of Rs.5,000 as costs. Aggrieved of the aforesaid order, the petitioner approached this Court in exercise of Constitutional Jurisdiction. It is significant to note that while admitting the petition for regular hearing, this Court was pleased to direct the trial Court to continue proceedings without rendering a final judgment.

5. The learned counsel for the petitioner submits that the respondents were admittedly granted a number of opportunities to produce evidence. Their attitude was careless and contumacious and the revisional court, acted illegally in granting yet another opportunity to produce their documentary and oral evidence. He points out that the Superior Courts have discouraged the trend of allowing more opportunities where adequate number of opportunities had been granted to a party to adduce evidence. The learned counsel has placed reliance on Messrs Nazir Muhammad and brothers v. Islamic Republic of Pakistan(1990 CLC 729); Baldia Shahpur Saddar v. Government of the Punjab, through District Collector, Sargodha and another (1993 MLD 930), and Habib Bank Limited v. Messrs Aulia Engineering and others (1993 CLC 154) to argue that where sufficient number of opportunities have been granted and the conduct of the party has been careless and contumacious, further opportunities should not be granted as this constitutes abuse of the legal process.

6. The learned counsel for the respondents, on the other hand, submits that a suit tiled by the respondents as well as the application under section 12(2), C.P.C. were simultaneously being heard by the same court. The matters were adjourned by the court separately for production of evidence in application under section 12(2), C.P.C. for 27-10-2004 and the suit was adjourned to 27-11-2004. He argues that the respondents were under a misconception that both matters had been adjourned to 27-11-2004 which resulted in their inability to appear before the court for the date fixed for recording of evidence and produce their evidence on the said date. He therefore, argues that valuable rights of the respondents were involved and they cannot be non-suited merely on technical grounds.

7. I have heard the learned counsel for the parties and have perused the record with their assistance.

8. It appears that application under section 12(2), C.P.C. and the suit filed by the respondents were fixed before the same 'court on the same date. While the application under section 12(2), C.P.C. was adjourned for 27-10-2004 for recording evidence, the suit was put off to 27-11-2004. Consequently, the possibility of misunderstanding and misconception regarding the date of hearing cannot be ruled out. Order XVII, Rule 3, C.P.C. is a penal provision and is to be strictly construed and sparingly exercised after putting the defaulting party on notice that in case evidence is not 'produced on the next date of hearing, his evidence shall be closed and he shall be visited with penal consequences as visualized in Order XVII, Rule 3, C.P.C. Such warning does not appear to have been given to the respondents. In the facts and circumstances of the case it is noticed that the valuable rights of the respondents are involved in the matter and dismissal of their application under section 12(2), C.P.C. would non-suit them on technical grounds.

9. It is further noted that the learned revisional court was careful and circumspect in providing just more opportunity to the respondents to produce their entire oral as well as documentary evidence. In addition, a sum of Rs.5,000 was directed to be paid as costs. It is also significant to note that the claim of the learned counsel for the respondents that the evidence has since been recorded and the witness produced by the respondents has also been cross-examined by the learned counsel for the petitioner has not been denied. It would therefore not serve any useful purpose at this stage to interfere in this matter in exercise of extra-ordinary Constitutional Jurisdiction of this Court. Even otherwise, the order passed by the learned revisional court does not, in my opinion, I suffer from any illegality or material irregularity. It is neither perverse nor beyond the jurisdictional parameters of the revisional court. The learned revisional court has applied its mind to the facts and circumstances of the case and passed an order which would faster the ends of justice.

10. For the foregoing reasons, I do not consider this a fit case that may warrant interference by this Court in exercise of its extraordinary Constitutional jurisdiction. Consequently, this petition is found to be without merit. It is accordingly dismissed with no order as to costs. M.U.Y./M-705/L Petition dismissed.