2005 PLP 2600 (YLR)

This civil revision assails judgments and decrees dated 4-1-2003 and 1-7-2003 passed by the learned Civil Judge and learned District Judge, Sargodha respectively.

2. Precisely relevant facts are that petitioners filed a suit for possession of a plot on the basis of their title. It was contested by the respondent by controverting assertions in the plaint, by filing his written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. During the course of exercise of recording of evidence on 1-10-2002 parties along their counsel were present and witnesses of petitioners were available but the Presiding Officer was pre-occupied in his election duty and as such case was adjourned to 5-11-2002 for recording of evidence of the petitioners. On the adjourned date i.e. 5-11-2002 as well learned counsel for the parties were present along evidence of the petitioners, but case was adjourned to 4-1-2003 for effecting some compromise between the parties. The trial Court while adjourning this case noted that it will be last opportunity for production of evidence of the petitioners. This adjournment was not opposed by the counsel appearing on behalf of the respondent. On the next date i.e. 4-1-2003 evidence of the petitioners was not available, hence it was closed under Order XVII, rule 3, C.P.C. The trial Court on account of forfeiture of petitioners' right to produce evidence simultaneously dismissed their suit vide its judgment and decree dated 4-1-2003.

3. Petitioners aggrieved of the decision of the trial Court dated 4-1-2003 filed an appeal before the learned District Judge, but remained unsuccessful as their appeal was dismissed vide judgment and decree dated 1-7-2003. Now they have filed instant revision petition for setting aside both the judgments and decrees of the two Courts below.

4. A notice to the respondent was ordered to be issued for final hearing of this revision petition, a copy of which was received by his son Abdul Majid, who also signed the process, issued by the office. In spite of service and repeated calls in the case, nobody turns up to defend this petition on behalf of the respondent. Respondent is proceeded against ex parte.

5. Learned counsel for the petitioners submits that date preceding the one, on which the petitioners were penalized and their right to lead evidence was closed under Order XVII, rule 3, C.P.C., the case was not adjourned on their request hence no penal action could have been taken against the petitioners. He further submits that on the earlier date i.e. 5-11-2002, evidence of the petitioners was available, but the case was adjourned for compromise between the parties. On this adjournment, respondent had not objected, so provisions of Order XVII, rule 3, C.P.C. were not attracted to the case in hand. It has also been urged on behalf of the petitioners that suit by them involved, their proprietary rights in immovable property, involving intricate question of law and facts, should not have been dismissed in the manner, adopted by the two Courts below. Learned counsel for the petitioners further submits that there was no material on the file in form of evidence, oral or documentary, enabling the Court to pronounce judgment, hence the Court should have proceeded under Order XVII, rule 1, C.P.C. instead of the provisions, invoked.

6. I have anxiously considered the arguments of the learned counsel for the petitioners and have examined the record appended herewith. Undeniably evidence of the petitioners was available on two earlier dates fixed by the Court, but it was not recorded, once on account of pre-occupation of the learned Presiding, Officer in his election duty and second time due to some negotiations of compromise between the parties. Neither the respondent nor his counsel objected to adjournment of the case on the preceding date on which some effort of compromise was being made between the parties and such a date cannot be considered, adjournment on the request of the petitioners, enabling invocation of provisions of Order XVII, rule 3, C.P.C. In the case of Syed Tasleem Ahmad Shah v. Sajawal Khan etc. 1985 SCMR 585 the Honourable Supreme Court of Pakistan held, in the similar circumstances, that where defendant had prayed for adjournment of the case and plaintiff did not object to it, would not amount to granting time to the defendant at his request, hence the Court was not justified to invoke provisions of Order XVII, rule 3, C.P.C. to close defendant's evidence. In this precedent case order closing evidence was set aside and the case was remanded for its decision afresh by the trial Court. In another case of Qutab-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109 it was mandated that suit could not have been dismissed, as the case was not adjourned on previous date, at the request of the appellant. In this case, as well, order closing evidence was set aside and case was remanded. In another case this Court while dealing with the case of Muhammad Hussain and 5 others v. Akram Baig and 3 others PLD 1988 Lahore 183 a finding was returned that provisions of Order XVII, rule 3, C.P.C. being penal in nature have to be considered strictly and where adjournment was sought by a party and was not objected by the other side it would not amount to a request for adjournment, by the former, for the purpose of above-referred provisions of law.

7. This case was adjourned from 5-11-2002 to 4-1-2003, on which date evidence of the petitioners was closed. On 5-11-2002 neither the case was adjourned on the request of the petitioners nor adjournment of it, was opposed by the respondent, as such, I respectfully following the view taken by the Honourable Supreme Court of Pakistan in the cases noted above, hold that provisions of Order XVII, rule 3, C.P.C. were not applicable to this case and evidence of the petitioners which was available on the preceding date, could not have been closed, but this aspect of the case escaped notice of both the Courts below rendering their decisions a nullity at law. Resultantly, this revision petition is accepted, judgments/orders and decrees dated 4-1-2003 and 1-7-2003 passed by the learned Civil Judge and learned District Judge, Sargodha, respectively, are set aside. In result of it, suit of the petitioners shall be deemed to be pending before the trial Court which shall be decided by it, after granting one opportunity to the petitioners, for producing their evidence and thereafter the suit shall be decided in accordance with law. There will be no order as to costs. M.I./M-263/L Revision accepted.