PLJ 2010
Present: Raja Muhammad Shafqat Khan
Abbasi, J.
MUHAMMAD ASLAM and another--Petitioners
versus
MUHAMMAD SHARIF and antoher--Respondents
C.R. No. 609 of 2009, decided on
11.5.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, R. 3--Right of producing
evidence was closed--Two witnesses were examined and thereafter no witness was
brought in the witness box despite acceptance of their application for
production of additional evidence--Validity--Sufficient opportunities were
provided to the petitioner for providing witnesses--Even on the specific date,
they were directed to produce the evidence otherwise, right will be struck off
and the case was kept in waiting and at that juncture, trial Court proceeded to
close the right of production of evidence. [P.
435] A
Adjournments--
----Consecutive and successive
adjournments--Conduct of--Misuse of process of Court--Failed to produce
evidence despite granting of more than nine consecutive and successive
adjournments for that purpose--Warning, final and last opportunity at six
different occasions were also given to petitioners--Conduct of the petitioners
indicates as to how much they were serious in their cause--Held: Trial Court
could not keep pending the cause for an indefinite period--It was duty of
plaintiff to lead evidence in order to prove their cause. [P. 436] B
Civil Procedure Code, 1908 (V of 1908)--
----O. XVIII, Rr. 1 &
3--Adjournment--Prerogative and discretion of the Court--Held: Parties cannot
claim adjournment as matter of right--It is prerogative and discretion of the
Court to grant or refuse adjournment in terms of Order XVII, Rules 1 & 3 of
CPC--If sufficient cause is shown, the Court can grant adjournment. [P. 436] C
Civil Procedure Code, 1908 (V of 1908)--
----O. XVIII, R. 1(3)--Cause improper
delay in proceedings--When evidence of the case once begun, then hearing would
be continued from day to day until all the witness in attendance had been
examined--Validity--Under Order 17, Rule 1(3) of CPC, when sufficient cause is
not shown--Held: Court shall proceed with the suit forth with--These provisions
are not meant to enable the party to cause improper delay in proceedings. [P. 436] D
Civil Procedure Code, 1908 (V of 1908)--
----O.XVII, R. (3)--Sufficient
reason--Nine opportunities were provided despite burden of costs and giving
warning--Order sheet did not indicate sufficient reason for further
adjournment, hence, trial Court was right in proceeding under Order 17, Rule 3
of CPC and dismissing the case on the basis of material available on record. [P. 436] E
2008 SCMR 322 & 2004
YLR 1166, rel.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. XVII, R. 3--Civil
revision--Right of evidence was closed--Matter remained pending for about more
than three years--Nine opportunities were provided--Validity--Sufficient
opportunities had been provided to petitioners to prove their claim, but they
had failed to do so and matter remained pending for about more than three years
for recording of evidence of the petitioners--No misreading of record or
misinterpretation of law had been pointed out for the petitioner in the
impugned judgments--Petition was dismissed. [P.
436] F
Sardar Muhammad Ramzan, Advocate for
Petitioners.
Nemo for Respondent.
Date of hearing: 24.4.2009.
Order
The petitioners, namely, Muhammad Aslam,
son, and Mst. Khalida Bibi, daughter of Noor Alam (deceased), by filing this
revision petition under Section 115 C.P.C. have called in question the judgment
and decree dated 23.1.2009 passed by the learned Additional District Judge,
Kharian, District Gujrat, whereby he dismissed their appeal maintaining the
judgment and decree dated 8.4.2008 passed by the learned Civil Judge IIIrd
Class, Kharian, whereby he while closing their right of producing evidence
under Order XVII, Rule 3 C.P.C. dismissed their suit for possession through
pre-emption.
2.
Precisely the facts giving rise to this revision petition are that a
parcel of land measuring 7 marlas, bearing Khasra
Nos.735/2. Khata No. 161/186, as per Register Haqdaran Zameen 2000-01, situate
at Mauza Kotla Qasim Khan, tehsil Kharian was sold by Muhammad Afzal. Muhammad
Amjad and Muhammad Inayat to Muhammad Sharif respondent for a consideration of
Rs. 7,000/-, but in the mutation it was mentioned as Rs. 11,000/-, Noor Alam
deceased, predecessor-in-interest of the petitioners, filed a suit for
possession through pre-emption narrating therein that he came to know of the
sale on 23.6.2004, at 9.00 a.m. through Muhammad Iqbal son of Muhammad Shafique
in the presence of Haji Muhammad Siddique and Muhammad Aslam; he at once
declared his intention of pre-emption in presence of the witnesses and thereby
performed Talb-e-Mawathibat"; thereafter, notice of
"Talb-e-Ishhad" was served upon the respondent through registered
Post/AD No. 1462, dated 23.6.2004, attested by two truthful witnesses asking
the respondent to admit superior right over the suit property and transfer the
same, but he refused to do so; Noor Alam deceased filed a suit for possession
through pre-emption on 31.7.2004 on the basis of common Khata and common source
of water and having superior right over the suit property; the respondent
contested the suit by filing written statement; out of the divergent pleadings
of the parties, the learned trial Judge vide order dated 1.12.2004 proceeded to
frame fourteen issues inclusive of the relief and fix the case for evidence of
the plaintiff on 24.2.2005, on which date statement of Postmaster (PW-1) was
recorded; thereafter on 26.5.2005, statement of one witness (P.W.2) was also
recorded and the case was postponed to 12.9.2005 for rent of the evidence of
the plaintiff, but on the said date application for impleading legal heirs of
Noor Alam plaintiff was filed, which was not contested by the respondent and
was allowed; from 1.10.2005 to 30.11.2005, the case remained pending for filing
of amended memo of plaint and reply thereto; on the last date, the plaintiffs
were ordered to produce evidence on 23.2.2006, but on the said date evidence was
not produced; the petitioners moved an application seeking permission to
produce secondary evidence, which was allowed on 28.7.2007 and the case was
posted for hearing on 15.9.2007; thereafter seven adjournments were afforded to
the petitioners for producing evidence and on 11.3.2008, the learned trial
Judge providing last opportunity to the petitioners adjourned the case to
8.4.2008 and on the said date, when the petitioners again failed to produce
their witnesses, their right to produce evidence was closed and their suit was
dismissed vide judgment and decree dated 8.4.2006; being aggrieved of the said
judgment and decree, the petitioners/plaintiffs preferred appeal before the
learned Additional District Judge, Kharian, which was also dismissed vide judgment
and decree dated 23.1.2009. Hence, the instant revision
petition.
3.
This petition came up for hearing on 13.4.2009, when pre-admission
notice was issued to the respondent for today. Service upon him was ordered to
be effected through ordinary course, registered Post/AD as well as T.C.S. at
the expense of the petitioners, but they failed to deposit the expenses, due to
which notice could not be issued to the respondent. In this situation, I
proceed to decide this revision petition today on merits.
4.
It has been argued by the learned counsel for the petitioners that as
the judgments and decrees of both the Courts below are result of misreading or
non-reading of record, therefore, the same are not sustainable in the eyes of
law; that due to unavoidable circumstances the petitioners could not produce
the evidence as Muhammad Aslam (the petitioner), who is necessary witness, had
gone abroad; that the judgments of the Courts below are contrary to law,
perverse and, hence, are liable to be set aside.
5.
I have heard the learned counsel for the petitioners at considerable
length and have gone through the record available on the file as also judgments
and decrees of the Courts below.
6.
Perusal of the judgment and decree dated 8.4.2008 passed by the learned
Civil Judge, Kharian reveals that the said learned Judge after observing the
fact that the suit in hand had been filed on 31.7.2004 and issues had been
framed on 1.12.2004 and from the said date, the suit was lingering on for the
evidence of the petitioners for one reason or the other. Copy of order sheet of
the trial Court appended with this petition shows that before death of Noor
Alam, the predecessor-in-interest of the petitioners, two witnesses had been
examined and thereafter no witness was brought in the witness box despite
acceptance of their application for production of additional evidence.
Sufficient opportunities had been provided to the petitioners for the said
purpose and ultimately the trial Court while granting them last opportunity on
11.3.2008 had postponed the case to 8.4.2008. Even on the said date, the
learned counsel appearing on their behalf was directed to produce the evidence
otherwise their right will be struck off and the case was kept in waiting till
2.30 p.m. and at that juncture, the learned trial Judge proceeded to close the
right of production of evidence of the petitioners.
7.
Insofar as the appellate judgment and decree dated 23.1.2009 is
concerned, it appears that the learned appellate Judge after viewing the case
from all its angles and considering the grounds urged by the petitioners has
rightly upheld the judgment and decree of the trial Court. The contention of
the learned counsel for the petitioners that Muhammad Aslam, one of the
petitioners, who was patient of sugar, eyesight and hypertension, had undergone
an operation at England and the doctor had advised him rest due to which he
could not come to Pakistan and ultimately he arrived in Pakistan on 18.4.2008,
whereas his right to produce evidence was closed on 8.4.2008, does not carry
any substance because this ground had not been taken by the learned counsel
while filing the appeal before the Court below and on the day when the impugned
judgment and decree was being passed, the learned counsel had produced
Photostat of the Passport of Muhammad Aslam petitioner. The learned appellate
Judge while dealing with the said stance, proceeded to observe that the said
document goes on to show that the appellant is not interested in prosecution of
the case instituted by him and that had he been interested, he must not have
withheld the proceedings before the trial Court by not producing his evidence.
In the present case, issues had been
framed on 1.12.2004 and statement of P.W.2 was recorded on 26.5.2005. The
petitioners failed to produce their remaining evidence despite granting of more
than nine consecutive and successive adjournments for the said purpose. They
were also given warning, final and last opportunity at six different occasions.
In this regard, conduct of the petitioners is clearly a misuse of the process
of Court, for which no indulgence can be shown. Conduct of the petitioners
indicates as to how much they were serious in their cause. The trial Court
could not keep pending the cause for an indefinite period. It was duty of the
plainitiff/petitioners to lead evidence in order to prove their cause.
Parties cannot claim adjournment as a
matter of right. It is prerogative and discretion of the Court to grant or
refuse adjournment in terms of Order XVII, Rules 1 and 3 C.P.C. If sufficient
cause is shown, the Court can grant adjournment in terms of provisions of
sub-rule (2) of Rule 1 of Order XVII C.P.C. It has been provided that when
evidence of the case once begun, then hearing shall be continued from
day-to-day until all the witnesses in attendance have been examined. Under
sub-rule (3) of Rule 1 of Order XVII C.P.C, when sufficient cause is not shown,
it has been provided that the Court shall proceed with the suit forthwith.
These provisions are not meant to enable the party to cause improper delay in
the proceedings. In the present case, petitioners had been provided as many as
nine opportunities despite burden of costs and giving warning. The order sheet
does not indicate "sufficient reason" for further adjournment,
hence, the trial Court was right in proceeding under Rule 3 of Order XVII
C.P.C. and dismissing the case on the basis of material available on the
record. Reliance is placed on the cases of Zahoor v. Election Tribunal (2008
S.C.M.R. 322) and Muhammad Afzal v. Muhammad Ashraf (2004 Y.L.R. 1166).
8.
The judgments and decrees passed by the Courts below are based on solid
reasons. Sufficient opportunities had been provided to the petitioners to prove
their claim, but they failed to do so and the matter remained pending for about
more than three years for recording of evidence of the plaintiffs/petitioners.
No misreading of record or misinterpretation of law has been pointed out by the
learned I counsel for the petitioners in the impugned judgments and decrees.
9. Resultantly, this revision petition fails and is dismissed
in limine.
(R.A.) Petition
dismissed.