2005 PLP 1057 (MLD)

Date of hearing: 9th September, 2004. This civil revision assails judgments and decrees dated 22‑9‑1998 and 27‑4‑2000, passed by the learned Civil Judge and learned Additional District Judge, Rawalpindi, whereby suit of the respondents for permanent injunction was decreed and appeal of the petitioner there against failed, respectively.

2. Precisely, relevant facts are that respondents Nos.1 to 3 filed a suit for permanent injunction against the petitioner and respondent No.4, averring that they were owners in possession of property measuring 16 Marlas detailed in their plaint and the defendants had no right, title or interest therewith, but in spite of it, they were bent upon to en; roach the same thus may be restrained from encroaching or interfering in their possession over the suit property.

3. Petitioner and respondent No.4 being defendants in the suit, contested it by filing written statement and denied averments in the plaint. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge, who was seized of the suit, recorded the evidence of the respondents Nos.1 to 3/plaintiffs and fixed the case for evidence of the defendants. Petitioner filed an application on 20‑5‑1997 for summoning of certain official record, which was allowed and they deposited the diet money of the witness besides other ancillary expenses but their evidence was closed vide order dated 8‑9‑1998 and on the basis of available evidence suit of the respondents was decreed on 22‑9‑1998.

4. Petitioner and respondent No.4, aggrieved of the decision of the trial Court and closure of their right to lead evidence vide order dated 8‑9‑1998 filed an appeal before the learned Additional District Judge, but remained unsuccessful, as the same was dismissed on 27‑4‑2000. Thereafter, petitioner filled instant revision petition, which was admitted to regular hearing and after completion of record the same has now been placed for, final determination. Respondents Nos.1 to 3 who are real contestants, are represented through their counsel.

5. Learned counsel for the petitioner submitted that interim orders of the trial Court reveals that petitioner had deposited the diet money of the witness to produce documents besides process fee after necessary permission of the Court, whereafter it was duty of the trial Court to summon these but this aspect of the case escaped notice of both the Courts below at the time of decision of the lis. In this behalf reference was made to Shambilid Ghori and another v. Mst. Tayyaba Begum (PLD 1989 Lahore 478) and Muhammad Nazir Qureshi Hashmi v. Shaukat Ali and 3 others (PLD 1994 Lahore 374). He further contended that on account of summoning of record through process of the Court, penal action in terms of Order XVII, rule 3, C.P.C. was not justified. According to him, assuming that the provisions of Order XVII, rule 3, C.P.C. were attracted even in that case, the trial Court was obliged under law to require the petitioner/defendants to tender in evidence the available evidence, oral or documentary besides having their own statements recorded but not such exercise was undertaken which negatively reflects on the impugned judgments.

6. Learned counsel appearing on behalf of the respondents strenuously refuted the arguments of the petitioner, supported the concurrent judgments and decrees and urged that after conclusion of evidence of the respondents/plaintiffs, petitioners were granted a number of opportunities to produce their evidence for a long period of more than one year but in spite of it they did not produce any evidence thus they were rightly proceeded against. He further contended that on the preceding date i.e. 21‑5‑1998 petitioner could not produce any evidence and the case was adjourned on their request subject to payment of costs of Rs.500 and this adjournment being on, request of the petitioner provisions of Order XVII, rule 3, C.P.C. were fully attracted and were rightly applied. It was also argued on behalf of the respondents that concurrent judgments and decrees of the two Courts below cannot be disturbed in revisional jurisdiction under section 115, C. P. C.

7. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Petitioner has placed on file copy of an application, seeking permission of the Court to summon some official record which was allowed subject to deposit of necessary expenses. Copy of the interim order‑sheet of the trial Court shows that petitioner had summoned witnesses through process of the Court and this fact is mentioned in orders dated 15‑9‑1997, 30‑10‑1997 and 3‑11‑1997. The trial Court besides summoning of witnesses through its process, had no doubt directed the petitioner to get the witnesses served at his own C responsibility, in terms of Order XVI, rule 7‑A, C.P.C., but at the time of taking an action under Order XVII, rule 3, C.P.C, the trial Court was not mindful of this fact that the witnesses or record was summoned by it through process of Court and being oblivious of this fact, did not care to inquire as to whether service of the witnesses or the record keeper has been effected or not. Under law, if the service of the summoned witnesses had been effected the impugned action could not have been taken. At the same tune, had there been any report by the Process Server that the summoned witnesses could not be served for any reason' not contributable to the petitioner even in that eventuality, the above‑referred order was not permissible. Interim, order dated 21‑5‑1998 appears to be routine order which was passed by the trial Court simply on account of non‑availability of evidence of the petitioner, without objection by the respondents Nos.1 to 3 but according to my humble view this order did not furnish a lawful and solid basis for closure of evidence of the petitioner.

8. The learned trial Judge on 21‑5‑1998 the date preceding to the order under Order XVII, rule 3, C.P.C. marked presence of the representative of the petitioner/defendants, who was also present on the day of impugned action but was not required to produce whatever evidence available with him, documentary or oral. He was also not required by the trial Court to have his own statement recorded in rebuttal of evidence of the respondents, which was their vested right. Number of opportunities availed by the petitioner or length of time consumed in concluding evidence was not the only relevant factor for the action under discussion, for which besides other circumstances the preceding date and the order on it, was relevant. Reference in this behalf can be made to the celebrated judgments of the Honourable Supreme Court in the cases of Syed Tasleem Ahmad Shah v. Sajawal Khan and others (1985 SCMR 585), Haji Muhammad Ramzan Saifi v. Mian Abdul Majid and others (PLD 1986 SC 129), Ali Muhammad v. Mst. Murad Bibi (1995 SCMR 773) and Syed Haji Abdul Wahid and another v. Syed Sirajuddin (1998 SCMR 2296).

9. Record of the trial Court reveals that petitioner and respondent No.4 were never given any final opportunity of producing their evidence and were not given opportunity of producing available evidence as noted above, besides which they had summoned the witnesses through process of the Court and respondents could have compensated by payment of costs for the inconvenience, if any, suffered by them. For all the above reasons, judgments/decrees of the two Courts below dated 22‑9‑1998 and 27‑4‑2000 and the order dated 8‑9‑1998 closing evidence of the petitioner under Order XVII, rule 3, C.P.C. suffers from material irregularities/illegalities amenable to revisional jurisdiction of this Court and consequently this revision petition is accepted and by setting aside those judgments and decrees/orders, case is sent back to the trial Court for allowing only one opportunity for production of whatever evidence defendants wish to produce, on a date to be fixed by trial Court, subject to payment of costs of Rs.5000 to respondents Nos.1 to 3 and to decide the case afresh in accordance with law.

10. Parties are directed to appear before the learned District Judge, Rawalpindi on 28‑9‑2004 for onward entrustment of the case for its trial, as noted above, to any competent learned Civil Judge. Parties are left to bear their own costs. H.B.T./M‑987/L Case remanded.