P L D 2006 Lahore 738 (PLP)

MIAN HAMID FAROOQ, J.

The respondent filed the suit for possession through pre-emption together with an application for the grant of temporary injunction before the learned Civil Courts. The petitioner/defendant was summoned, he, for the first time, appeared before the learned trial Court, on 14-7-2004, and the case was adjourned for a future date for filing the written statement. The petitioner, despite providing various opportunities, including final opportunity failed to file the written statement and the learned trial Court, then, proceeded to close petitioner's right to submit written statement, vide order dated 26-1-2005. Petitioner's revision petition against the said order was also dismissed by the revisional Court, vide order dated 30-6-2006, hence the present petition.

2. Learned counsel for the petitioner has contended that although the learned trial Court provided the petitioner last opportunity to file the written statement, yet did not warn him that in case of failure to file the written statement, his right would be closed. He has relied upon Lahore Development Authority through Director-General v. Muhammad Shafi and 3 others 2004 YLR 959.

3. I have heard the learned counsel and examined the available record. In nutshell the petitioner has challenged the order invoking the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, passed by a revisioanl Court in exercise of its powers under section 115, C.P.C. and, thus, the question arises for determination is as to whether the Constitutional petition is competent and maintainable against the revisional order passed in a civil litigation.

4. The said legal question was examined in Muhammad Sami Ullah Khan v. Additional District Judge and others reported as PLD 2002 Lah. 56 and this Court while relying upon Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 and Muhammad Khan v. Ghulam Fatima 1991 SCMR 970 came to the conclusion that a revisional order arising out of civil litigation could not be challenged in constitutional petition. It was further held that if an order passed by a District Judge, in exercise of revisional jurisdiction, is although illegal, yet passed with jurisdiction, then the same cannot be assailed in a constitutional petition and if an order passed by the revisional Court is wholly void or coram non judice, of course, a writ petition against such a revisional order, would be competent. Except for such orders in no other case an order passed by District Judge as a revisional Court in Civil litigation can be challenged through filing the constitutional petition.

5. I have minutely perused the order dated 30-6-2006, rendered by the learned Additional District Judge and I am of the considered view that the said order is neither void nor without jurisdiction and the same has been passed by the learned Additional District Judge having jurisdiction in the matter. The present petition deserves to be dismissed on this ground alone.

6. Even otherwise, the petitioner has got no case on merits either. As rioted above, the petitioner appeared before the learned trial Court, on 14-7-2004, on which date he was required to file the written statement. Thereafter the case was adjourned to 27-7-2004, 24-9-2004 and 16-10-2004, but the petitioner avoided to file written statement and sought adjournments. It is true that on two dates of hearing i.e. on 28-10-2004 and 20-11-2004, the learned presiding officer was on leave yet it is equally true that the petitioner could not take advantage of a period of almost a month. On 15-12-2004, the case was adjourned at the request of the petitioner as a last opportunity. The petitioner could not avail the said last opportunity and did not file the written statement rather on 3-1-2005 again requested for the postponement of the case. Despite all that the learned trial Court adjourned the case to file written statement as last and final opportunity, however, the said warning could not deter the petitioner and he remained adamant in not filing written statement till petitioner's right to file written statement was closed. It flows from the above that the petitioner could not file written statement despite providing 8 opportunities within a span of 6 months, whereas under proviso to Order VIII, Rule 1, C.P.C. the period allowed for filing written statement shall not ordinarily exceed thirty days. It appears that the petitioner by his consistent default made it impossible for the learned trial Court to proceed with the trial. The learned Civil Judge afforded every possible opportunity to the petitioner to retrace his steps and to file the written statement but the conduct of the petitioner was not only negligent but also contumacious. It seems that he was determined not to file the written statement.

7. As regards the solitary contention of the learned counsel, the same is devoid of any force, inasmuch as the petitioner, on 15-12-2004, was allowed last opportunity and on 3-1-2005, he was granted last and final opportunity. The petitioner could not avail the said opportunities and persistently defaulted in filing written statement. As regards the case of Lahore Development Authority (ibid) relied upon by the learned counsel, the said judgment is of no avail to the petitioner; because in the said judgment the adjournments were granted in routine, while in the instant case, the case was adjourned at the specific requests of the petitioner inasmuch as last opportunities were granted. When the learned trial Court granted twice last and final opportunities, it pre-supposes that no final opportunity would be granted to the petitioner in future. The said judgment is of no avail to the petitioner.

8. I have examined both the impugned orders and find that both the Courts did not commit any illegality. Under the circumstances, I am not inclined to exercise the constitutional jurisdiction in the matter, which is not only discretionary but also equitable.

9. Upshot of the above discussion is that the present constitutional petition is incompetent and devoid of merits, thus stands dismissed on both the counts. H.B.T./M-430/L Petition dismissed.