2005 PLP 452 (YLR)

Mirza Aziz Akbar Baig for Respondents. Through this Constitutional petition the petitioners have challenged the order dated 12‑6‑1998 passed by learned Additional District Judge, Taunsa Sharif, through which, revision petition filed by the respondents Nos.1 to 11 was accepted and while setting aside order dated. 11‑6‑1997 passed by learned trial Court passed under Order XVII, rule 3, C.P.C., they were allowed another opportunity to produce evidence subject to payment of Rs.500.

2. Brief facts of the case as narrated in this petition are that respondents Nos.1 to 11 filed a suit for declaration against Pir Bakhsh, predecessor‑in‑interest of petitioners along with respondents Nos. 12 and 13 before the learned Civil Judge, Taunsa Sharif, challenging Mutation No.2466, dated‑ 30‑6‑1955 being result of fraud, which was contested by filing written statement. Respondent No.1 being special attorney of other plaintiffs respondents Nos. 2 to 11 and on his behalf made a consenting statement in the aforesaid case on 27‑2‑1988 while admitting Mutation No. 2646, dated 30‑6‑1955 and opted to withdraw the suit. Hence, on the statement of Elahi Bakhsh the aforesaid suit was dismissed as withdrawn vide order dated 27‑2‑1988.

3. Respondents Nos.2 to 11 filed an application under section 12(2), C.P.C. for setting aside the order dated 27‑2‑1988 in the aforesaid case before the learned Civil Judge, Taunsa Sharif. The petitioners contested the application while submitting written reply to the same. The learned Civil Judge on divergent pleadings of the parties framed certain issues and case was placed for recording of evidence of respondents Nos.2 to

11. For 2‑10‑1991 last opportunity was given for production of evidence and on the said date although counsel for both the parties were present yet the evidence was not produced by respondents Nos.2 to 11 and the learned Civil Judge dismissed the application after closing their right of evidence. Feeling dissatisfied with the aforesaid order respondents Nos.2 to 11 filed a civil revision before the learned District Judge, D.G. Khan and the same was entrusted to learned Additional District Judge, who accepted the same, vide order dated 21‑5‑1997 and final opportunity for producing the evidence was granted with cost of Rs.2,

000. Both the parties were also bound down to appear before the learned trial Court on 29‑5‑1998. On the said date learned counsel for both the parties appeared and the case was adjourned C to 11‑6‑1997 by giving last and final opportunity to produce the evidence. On 11‑6‑1997 the petitioners along with their counsel appeared but none appeared on behalf of respondents Nos.2 to 11 and as the case was fixed for production of their evidence the learned Civil Judge again proceeded to close the right of evidence under Order XVII, rule 3, C.P.C. Resultantly, the application was dismissed for non‑prosecution of proof. Aggrieved by the said order, the respondents again filed revision petition before the learned District Judge, D.G. Khan and the same was entrusted to learned Additional District Judge, who accepted the same vide order dated 12‑6‑1998 with the direction to afford one more opportunity to produce evidence to respondents Nos. 2 to 11 subject to payment of cost of Rs.500, which order has been impugned herein by the petitioners.

4. Learned counsel for the petitioners, contends that the learned trial Court had rightly dismissed the application as only one opportunity was granted to respondents Nos. 2 to 11 to produce their evidence vide order dated 21‑5‑1997 by the revisional Court which they failed to avail and even amount of the costs was not paid, hence, the learned trial Court had no option except to proceed under Order XVII, rule 3, C.P.C. as the application was specifically fixed for production of evidence by respondents Nos.2 to 11 with last opportunity under the orders of the learned revisional Court. It is argued that the learned revisional Court while allowing one more opportunity to produce evidence by respondents Nos. 2 to 11 has exceeded its jurisdiction. Also relies upon 1989 CLC 1575 and PLD 1969 SC 270 to contend that provisions of Order XVII, rule 3, C.P.C. were rightly applied by the learned trial Court.

5. On the other hand, learned counsel for the respondents has opposed this petition on the ground that the learned Additional District Judge has rightly accepted the revision petition as in fact neither the counsel for the respondents appeared on the date fixed, hence, the application could be dismissed only for non‑prosecution, hence evidence could not be closed under Order XVII, rule 3, C.P.C., which provisions were wrongly applied while dismissing the application. He has supported the impugned order.

6. I have heard the learned counsel for the parties and also perused the impugned order. It is not denied by the learned counsel for the respondents that earlier opportunities were granted to the respondents to produce the evidence but they failed to produce the same and vide order dated 2‑10‑1991 their right to produce the evidence in the application filed by them was closed by the learned trial Court. The said order was assailed in revision petition by respondents Nos.2 to 11 which was accepted vide order dated 21‑5‑1997 and parties were directed to cause despite affording of last opportunity for the purpose. As such, the learned trial Court was right in applying the provisions of Order XVII, rule 3, C.P.C. and non appearance of respondents Nos.2 to 11 on the date fixed for production of evidence did not confer any right upon them for grant of another opportunity to produce evidence, rather it was a circumstance against respondents Nos.2 to 11 to draw an inference that they were not interested in the prosecution of their petition moved under section 12(2), C.P.C. and had no proof to adduce in support thereof. As such, the order dated 11‑6‑1997 passed by learned trial Court is confirmed‑and order dated 12‑6‑1998 passed by learned revisional Court is set aside.

7. Resultantly, the instant writ petition is accepted and petition filed under section 12(2), C.P.C. by respondents Nos.2 to 11 stands dismissed. M.I./P‑52/L Petition accepted.