2011 PLP 1855 (MLD)

RAUF AHMAD SHEIKH, J.

The petitioner has challenged the vires of the order dated 24-7-2002 passed by the learned ADJ, Burewala, whereby a revision petition filed by him against order dated 24-5-2002 passed by respondent No.2 seeking adjournment to enable him to produce Mian Abdul Rashid petition writer as her witness was disallowed and her evidence to the extent of said witness was closed.

2. The facts in brief as emerge on perusal of the record are that the petitioner had filed a suit for possession through pre-emption in respect of the land fully described in para No.1 of the plaint on payment of Rs.40,

000. It was contended that the land was alienated in favour of defendant No.1/respondent No.3 for a sum of Rs.40,000 through sale-deed dated 9-2-1993. On attaining the knowledge, she made Talb-i-Muwathibat then and there and thereafter, made Talb-i-Ishhad by sending a written notice through registered post. She contended that she is co-sharer in the Khata and has superior right being Shafi-i-Khaleet and Shafi-i-Jar whereas defendant No.1/respondent No.3 does not bear any such qualification.

3. The suit was contested by defendant No.3/respondent. On 24-5-2002, the plaintiff/petitioner produced three witnesses, whose evidence was recorded. He also submitted an application for adjournment on the ground that Mian Abdul Rashid witness was not available as his brother had suffered the brain haemorrhage but the learned trial court closed the evidence by observing that the last and final opportunity had been given. This order was assailed before the District Court, Vehari. The learned ADJ, Burewala dismissed the same by observing that all necessary documents i.e. copies of pleadings, produced documents and orders of the trial court were not annexed with the petition and that the last and final opportunity had been given so the learned trial court rightly closed the evidence. Consequently the revision petition was dismissed.

4. The learned counsel for the petitioner has contended that the learned trial court fixed the suit for evidence for the first time for 9-5-2002 and just after 15 days closed the evidence although the witnesses including Mian Abdul Rashid were produced on three dates of hearing i.e. 9-5-2002, 13-5-2002 and 17-5-2002 so the penal action was invoked in haste and thus gross miscarriage of justice was caused but the learned ADJ, Burewala failed to exercise his revisional jurisdiction and rectify the irregularity committed. It is urged that in case the documents were not required for disposal of the revision petition, the non-production of the same could have been dispensed with and in order to do justice, an opportunity to produce Mian Abdul Rashid witness should have been granted, specially when his brother was admitted in the Hospital and had died on the next day. In support of the contention raised reliance is placed on 1991 SCMR 496, 1993 CLC 1313 and PLD 1987 SC 447.

5. On the other hand the learned counsel for the respondent has contended that ample opportunities were given to the petitioner including the last one but Mian Abdul Rashid was not produced so the evidence to his extent was rightly closed. It urged that the petitioner did not append all the documents i.e copies of the pleadings, evidence and order sheet etc. so the learned ADJ rightly took notice of this lapse and dismissed the revision petition through a well reasoned order for non production of the required documents and also on merits.

6. The perusal of the order sheet reveals that on 9-5-2002 the witnesses including Abdul Rashid were present but the learned counsel for the defendant/respondent No.3 stated that he was not feeling well so the suit was adjourned to 13-5-2002. On the said date also, all the witnesses including Abdul Rashid were present but the suit was adjourned due to casual leave of the learned Presiding Officer. Again on 17-5-2002 the evidence was available but could not be recorded due to strike of the learned members of the Bar and suit was adjourned to 22-5-2002. On the said date, an application was submitted that one witness was not available so an adjournment be granted. On this, the last and final opportunity was given and the suit was adjourned to 24-5-2002. On the said date a written application was moved that Mian Abdul Rashid brother had suffered brain haemorrhage. Three witnesses were examined but the request for grant of adjournment was turned down, remaining evidence was closed and suit was fixed for evidence of the defendant. The above resume clearly reveals that the suit was fixed for evidence five times within a short span of 15 days and all the witnesses were present on three dates of hearing and only one witness was missing on one date of hearing. It is thus obvious that no contumacious omission was committed by the petitioner. On 24-5-2002 an application was submitted for grant of an adjournment for production of Mian Abdul Rashid on the ground that his brother had suffered the haemorrhage. This fact is fortified from the medical certificate Annexure-E, which reveals that brother of Mian Abdul Rashid was admitted in Hospital on 23-5-2002 and had died on 24-5-2002. In these circumstances, the learned trial court did not only act in haste but also ignored the golden principles of decision of the disputes of the people with "Adal" and "Ihsan". The order was harsh and unwarranted. Notwithstanding the grant of last and final opportunity, there were reasonable grounds available to grant an opportunity to the petitioner to produce Mian Abdul Rashid witness also as on the same day he had produced three witnesses, who were examined by the court. The penal provisions of Order XVII Rule 3, C.P.C. should be invoked with care and caution and no one should be deprived of the reasonable opportunity to produce the evidence. The learned trial court committed material irregularity in dismissing the application and disallowing the request for production of the said witness. The learned ADJ also failed to rectify this illegality. The mere fact that the copies of pleadings and evidence were not produced was not sufficient to dismiss the revision petition in view of the glaring irregularity and the proper course was either to direct the petitioner to produce or to dispense with the same as the revisional court had ample powers in this regard in view of proviso of section 115, C.P.C. In this respect the reliance is placed on 1991 SCMR 496 and 1993 CLC 1313. The next question raised by the learned counsel for the respondent is that the order of dismissal of the revision petition cannot be assailed by invoking the constitutional jurisdiction under Article

199. It is urged that since the order was not without jurisdiction and the revisional court could have passed a wrong or right order so the writ petition is not maintainable. In this respect reliance is place on PLD 2002 Lahore 56 and PLD 1985 SC

131. When the law confers the powers to decide the case upon any court or tribunal then it is obligation of the concerned court or tribunal that the case be decided in accordance with law and on merits and if a wrong order is passed by the revisional court against the principles of natural justice, established law or on erroneous application of the relevant law, then the order cannot be deemed to be passed within the jurisdiction vested in such court or tribunal and the High Court can scrutinize such order and set it aside, if so required by exercise of its constitutional jurisdiction. In this respect the reliance is placed on PLD 1987 SC 447.

7. For the reasons supra, I am of the considered opinion that both the orders called in question through this writ petition are not sustainable in the years of law. Consequently the writ petition is allowed and both the impugned orders are hereby set aside. The learned trial Court is directed to record the statement of Mian Abdul Rashid P.W. and then try to dispose of the suit within three months on the receipt of the order as the lis has become very old. The copy of the judgment be sent to the learned trial court through the learned District and Sessions Judge, Vehari immediately for compliance. S.A.K./S-118/L Petition accepted.