2002 PLP 574 (CLC)

This civil revision is directed against the judgment and decree, dated 16‑5‑1995 whereby the First Appellate Court accepting the appeal of the respondent decreed the suit in their favour and reversed the judgment and decree, dated 12‑6‑1993 passed by the trial Court.

2. Brief facts of the case are that the respondent filed a suit for declaration, partition, possession and permanent injunction in respect of a residential house constructed on an area of 6 Marlas, 3 Sarsai of the land situated in Jamia Masjid Street, Mohallah Dhabwala, Tehsil and District Hafizabad. The suit was contested by the respondent inter alia raising the plea that the plaintiff/respondent was not the daughter of deceased Mahla. The suit was contested and from the pleadings of the parties as many as 8 issues were settled. The plaintiff/respondent produced her evidence in affirmative by producing three witnesses which were P. W.1, P. W.2 and P.W.3 and producing documentary evidence Exhs.P.1 to P.4. The plaintiff/respondent thereafter, stated that she would record her statement in affirmation as well as in rebuttal after the evidence of the defendant/ petitioner. Thereafter case was adjourned on various dates for recording the evidence of the defendant/petitioner. It appears that the defendant/ petitioner did not produce any evidence and vide order, dated 6‑5‑1991 the trial Court by invoking the provision of Order 17, rule 3 closed the evidence of the defendant/petitioner. Against this order petitioner filed a review petition which was also dismissed by the trial Court. Thereafter, the trial Court decided the suit on merit and on the basis of the evidence already on record. The trial Court vide its judgment and decree, dated 12‑6‑1993 dismissed the suit of the respondent. The respondent preferred an appeal which was allowed by the Additional District Judge, Hafizabad vide judgment and decree, dated 16‑5‑1995 whereby the judgment and decree of the trial Court was reversed and the suit of the respondent was decreed. Aggrieved from the judgment and decree of the First Appellate Court the petitioner preferred present revision petition.

3. The learned counsel appearing for the petitioner contended that the order for closure of the evidence dated 6‑3‑1991 was not in accordance with law. It was next argued that the defendant/petitioner could not be invited to produce the evidence until the plaintiff/respondent had produced entire evidence. It was submitted that Issue No. 4 which related to the limitation was not attended to by the two Courts below. Relying on a judgment Naseer Ahmad v. District Judge, Multan and others PLD 1992 Lah.

92. Learned counsel submitted that the statement of the plaintiff/respondent could not be recorded in affirmation after the evidence of the defendant/petitioner. It was also argued by the learned counsel that Barkat Bibi who was the plaintiff did not appear as the witness, therefore, presumption had to be drawn against her. The learned counsel for the respondent supported the judgment of the Additional District Judge and pointed out that more than ten opportunities were availed of by the defendant/petitioner but he failed to produce any evidence. Therefore, the trial Court has rightly closed the evidence of the petitioner. Further, it was argued that the order, dated 6‑3‑1991 and order, dated 26‑6‑1991 passed on the review application of the petitioner had attained finality and that the plaintiff/respondent who is also successor‑in‑interest of Mahla deceased is being denied her right and share in the immovable property left by the deceased.

4. I have considered the arguments of both the learned counsel. The date of hearing before 6‑3‑1991 was 21‑1‑1991. On the said date both the counsel for the parties stated that a compromise between the parties is in offing and they may be given one opportunity for completion of the compromise. The Court accordingly adjourned the case for the compromise of the parties and in the alternative for the evidence of defendant/petitioner. On 6‑3‑1991 the counsel for the petitioner stated that compromise could not be effected and as the evidence of the petitioner was not available, therefore, by invoking the provision of Order 17, rule 3 the trial Court closed the evidence of the petitioner. From the order‑sheet of the trial Court it appears that on 21‑1‑1991 the case was not adjourned at the instance of the petitioner alone but it was adjourned on the request of both the parties to effect a compromise. It, therefore, follows that the case was not adjourned solely at the instance of the petitioner. Consequently the order passed on 6‑3‑1991 was not in accordance with law as the provision of Order 17, rule 3 being penal in nature have to be interpreted and applied very strictly. As the case on the last date of hearing i.e. (1) 21‑1‑1991 was adjourned at the instance of both the parties, therefore, the evidence of the petitioner could not be closed under Order 17, rule 3, C.P.C. on 6‑3‑1991. It has caused prejudice to the petitioner. The suit filed by the respondent was for declaration, partition, possession and permanent injunction in pith and substance. It is a suit for partition of the property inter se between the legal heirs of Mahla deceased. The Additional District Judge while allowing the appeal granted a declaratory decree whereas after holding that the respondent was one of the legal heirs, a preliminary decree was' required to be passed. Mere declaratory decree would not redress the grievance of the respondent. As the order of the trial Court as well of the Appellate Court suffers with the legal infirmities, therefore, I am inclined to accept this revision petition.

5. Accordingly the revision petition is allowed. The judgment and decree of the Appellate Court, dated 16‑5‑1995 and the judgment and decree of the trial Court, dated 12‑6‑1993 are set aside. The case is remanded to the trial Court with the direction that he would allow both the parties to produce their evidence and thereafter dispose of the suits on merit within six months. S.A.K./C‑123/L Case remanded.