1986 PLP 1813 (CLC)

(c) Constitution of Pakistan (1973)

Art. 199--Civil Procedure Code (V of 1908),

0. XVII, r.3- Constitutional jurisdiction--Exercise of, to enforce discretion- Adjournment of case for production of evidence, held, would be a matter of discretion for Court--Constitutional jurisdiction, could not be exercised to force a Court to exercise discretion in particular manner- Refusal to adjourn case, however, would not appear perverse in view of long pendency of years due to fault of recalcitrant party. (d) Civil Procedure Code (V of 1908)

S. 115--Revisional jurisdiction--Affidavits regarding mistake in regard to date of hearing--Effect--Fact of such affidavit remaining unrebutted, held, would not be much inspiring, same being not legally permissible to be introduced for first time in revisional jurisdiction of Court Question of fact, moreover, could not be urged in revisional jurisdiction. Date of hearing: 17th November, 1985. This writ petition assails an order, dated 3-10-1985 of the learned Additional District Judge, Rahimyar Khan whereby, he dismissed a civil revision brought against an order, dated 24-6-1985 of the Civil Judge IInd Class, Liaquatpur passed under Order XVII, rule 3, C.P.C., closing the petitioners evidence. 2. The order-sheet (pages 13-14) shows that after having failed to produce evidence on quite a few dates earlier, the petitioners-defendants made a request, on 22-4-1985 for yet another adjournment for producing evidence. It was accordingly allowed till 24-6-1985 when strangely not only they again failed to produce evidence, but also failed even to appear or instruct their counsel who in quite plain words expressed his inability to explain as to why they omitted to turn up or produce evidence. On such unsatisfactory reply from the counsel, the trial Court giving a detailed chronology of various dates allowed to them during last four years, foreclosed their right to produce the same apparently under Order XVII, rule 3, C.P.C. but adjourned the case to 17-9-1984 for rebuttal on behalf of the respondents-plaintiffs. 3. Aggrieved by this order, as already indicated, the petitioners preferred a revision petition before the learned Additional District Judge primarily on the ground that in the counsel's diary by mistake the next date recorded was 29-6-1985 rather than 24-6-1985. Copies of the counsel's brief cover, diaries and affidavits were tendered in support of the plea but the learned Additional District Judge finding that it had not been taken up before the trial Court despite appearance of the counsel, rejected it out of hand being something new. 4. The impugned order having been passed in Revision, may not be further assailed in a writ petition. Such a view was taken in Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131 and Rahim Bakhsh and another v. Civil Judge, Lodhran and 3 others 1985 CLC 387. Counsel submitted that on the penultimate date, no request had been made on behalf of the petitioners to further adjourn the case for their evidence and that it was made only in the routine least justifying application of Order XVII, rule 3, C.P.C. This argument cannot be heard as the relevant order of the trial Court clearly discloses that the adjournment was specially sought on behalf of the petitioners. The fact that this time the case was before another Presiding Officer on transference would not necessarily make the adjournment in the routine. To read the record of the trial Court in a fashion not warranted by it is indeed preposterous. A presumption of truth attaches to it. Even the last trend of hearings would show that there had been a number of adjournments to accommodate the petitioners and hence making a request on their part this time was not out of place. Next, counsel urged that since the trial Court had after all adjourned the case for evidence of the opposite party, there was no occasion to apply the punitive provisions of Order XVII, rule 3, C. P. C. as it envisaged "decision" either forthwith or on the adjourned date. He emphasized that in the absence of any decision made either on that case date or even on the next one, the rule was misapplied. I agree with him but the order could quite squarely be read to fall under Order XVII, rule 1, C.P.C. which authorises a Court to refuse adjournment to a recalcitrant party. Adjournments more or less are a matter of discretion. No writ would lie to enforce a Court to exercise its discretion in a particular manner. The refusal to adjourn the case here did not appear perverse especially keeping in view the long pendency of four years for which apparently the petitioners were more to blame than anyone else. Counsel contended that previous conduct was irrelevant in applying Order XVII, rule 3, C.P.C. He may be right but in the case of adjournments simpliciter such a conduct cannot be completely divorced from consideration. 5. Lastly, it was canvassed that the learned Additional District Judge committed an illegality in having totally ignored the affidavits as also the copies of diaries and the brief cover filed to show that there had been some mistake in regard to the date of hearing. I hesitate to subscribe to this view. It was not a case of total, absence of the petitioners before the trial Court. Their counsel had appeared but made no mention of the fact that his diary did not show this case as fixed for the date and that instead it was posted for 29-6-1985. Manifestly it was an afterthought and even legally could not have been considered in the course of revision petition. Besides, it was a question of fact and for this reason too could not be urged in a Revision. The contention that those documents remained unrebutted was not much inspiring as indeed those were not legally permissible to be introduced for the first time at the higher level of the revision petition. It was claimed that all rules helped advancement of justice and that compensation could have been awarded to the opposite party for adjournment rather than to deny the petitioners their vested right of defence. While propounding, this point, pendency of long four years was totally overlooked. Obduracy or refractroiness of a party has to be met with. To defeat or disposal of so simple a suit for as many years at the instance of their petitioners was not advancing the ends of justice. Rather it was being denied. The Courts below were perfectly justified in refusing them undue benevolence. The petition is accordingly dismissed in limine. A. A. Petition dismissed.