2010 PLP 1261 (MLD)

SHER MUHAMMAD KHAN, J.

The petitioners in the instant revision petition filed a declaratory suit, claiming ownership of 10 kanals 8 marlas in Khasra No.1007/426/427 situated in Mouza Sherpao District Charsadda against respondents and three others namely Abid Jan, Khan Bahadur and Farid Bacha in the year, 2003. Respondents in the instant revision petition and the three other persons mentioned above, who have not been arrayed as respondents in appeal before the learned appellate Court as well as in this revision petition, jointly submitted written statement on 24-2-2004. List of witnesses of the parties were filed on 16-3-2004 and then the petitioners were asked to produce their evidence. Statement of Patwari Halga Irshad Ali was recorded almost in one year, on five different dates, started some where in May, 2005 and completed on 19-4-2006 and then Bashirullah ADK was also examined as P.W.2. Afterwards so many opportunities were given to the petitioners to produce their evidence but they failed on each occasion. Lastly, on 5-12-2006 the petitioners were given notice under Order XVII, Rule 3, C.P.C. asking them to produce their evidence for 9-1-2007. Again on the date fixed plaintiffs/petitioners failed to comply with the order of the trial Court and did not produce their evidence, therefore, the suit was dismissed by the trial Court exercising the powers vested in it under Order XVII Rule 3, C.P.C. Appeals filed by the petitioners were also dismissed by the learned Additional District Judge, Charsadda at Tangi on 1-2-2008. The petitioners have impugned both the judgments and decrees of the two Courts below through this revision petition.

2. I have heard the learned counsel for the parties and have gone through the record with their able assistance. ?

3. The main contention of the learned counsel for the petitioners was that even if the learned trial Court wished to proceed under Order XVII Rule 3, C.P.C., it was its duty to decide the lis on merits by considering the material available on record and after hearing arguments of the parties. He placed reliance on the judgment of this august Court delivered in the case titled Habib Bank Limited v. Hazrat Hussain reported in 2005 CLD 1541 and the judgment passed by the Hon'ble Lahore High Court in case titled Muhammad Asghar and another v. Muhammad Islam reported in 2005 YLR 2600. His further submission was that one of the petitioners namely Zaman Khan (plaintiff No.3) had died and the petitioners wanted to bring his legal representative on the record due to which evidence was not brought.

4. On the other hand, learned counsel for the respondents raised preliminary objection on the maintainability of the revision petition on the ground that the petitioners neither in appeal nor in revision arrayed Abid Jan, Khan Bahadur and Farid Bacha as respondents, though they were defendants in the original plaint at Serial Nos. 11 to 13 and filed joint written statement with other defendants/respondents. He also questioned the maintainability of revision on the ground that petitioners have not annexed the decree-sheets with the judgment of the lower Courts without which the appeal and revision could not be entertained. On merits he argued that the orders of the two Courts below are perfectly in accordance with law which should be maintained.

5. No doubt, under Order XVII Rule 3, C.P.C. while exercising the powers, the learned trial Court must consider the material available on record. But in the instant case, the petitioners have challenged the Revenue Record in respect of the disputed Khasra numbers, wherein, they are recorded owners and respondents possessors No other evidence is available on the record which could be considered by the trial Court for passing order for correcting the Revenue Record, therefore, the learned trial Court had no other choice except to dismiss the suit. Order of the trial Court shows that the petitioners, were also given chance for producing their evidence on 26-9-2006, 7-11-2006 and 5-12-2006 and on all the occasions they miserably failed to adduce their evidence.

6. Another ground of the petitioners that they wanted to bring on record the legal heirs of plaintiff No.3 Muhammad Zaman, is also not acceptable for the reason that there is no application on the file from petitioners for this purpose. Moreover, it was incumbent upon the plaintiffs to accompany the plaint with statement giving the names and addresses of the persons who, in the event of death of the plaintiffs, may be made a party as his legal representatives. The record is silent regarding this aspect of the matter.

7. As far as the objection of the learned counsel for the respondents regarding non-annexation of the decree sheet is concerned, no doubt it is mandatory under Order XLI, Rule 1, C.P.C. but when an appeal or revision is filed without the decree-sheet and the office at the time of filing of their appeal or revision did not notice this mistake, then the plaintiffs or the petitioners should not be penalized. It has been held by the august Supreme Court in case titled Baseer Ahmad Siddiqui v. Shama Afroz reported in (1988 SCMR 892) that where the decree has not been prepared but the appeal is heard and disposed of after the record has been called for. The Court will be deemed to have been condoned the non-filing of the decree and the judgment will not be invalid. His other contention has forced regarding the non-impleadment of defendants Nos.11 to 13 which is fatal for the maintainability of the revision petition. Reliance is placed on PLD 1982 SC Page 46, wherein, it has been held that decree appealed from by some of defendants joint and indivisible against all the defendants. Failure to implead remaining defendants or any of them renders appeal incompetent and the same rule is equally applicable for filing of revision petition as well, as held by the Hon'ble Lahore High Court in case of Mubarak Ali v. Feroze Din and 2 others (1999 MLD 2297). For the reasons mentioned above the judgments and decrees of the trial Court as well as of the appellate Court are perfectly in accordance with law and facts.

8. Both the Courts did not act in the exercise of its jurisdiction illegally or with material irregularity, hence needs no interference by this Court in exercising the extra-ordinary revisional jurisdiction. The petition is dismissed with no order as to costs. H.B.T./165/P?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.