This judgment proposes to decide two revision petitions (Civil Revisions Nos, 2284 and 2285 of 2002) which assail judgment and decree dated 22.6.2002 passed by the Additional District Judge, Daska, District Sialkot, whereby appeal of Respondent No, 1 was accepted, judgment and decree dated 24.3.1998 passed by the trial Court was set aside and the case was remanded to the trial Court for its decision, in accordance with law.
2. Additional District Judge while accepting appeal of Respondent No, 1 simultaneously dismissed application of the petitioner under Order XLI, Rule 27 CPC, whereby he had prayed that in view of decretal of his preemption suit appeal of Respondent No, 1 has become infructuous with an added prayer for permission to produce copies of judgment and decree in his suit and that of the execution petition by way of additional evidence.
3. A short factual background of the case is that sale of land through a registered sale-deed dated 20.9.1994 in favour of Respondent No, 2 was pre-empted by the petitioner, as well as, Respondent No, 1 by filing two independent separate suits, which were consolidated by the trial Court on 1.4.1996. Suit of Respondent No, 1 after adjournments on different occasions, was on 24.3.1998 fixed for evidence of Respondent No,1/plaintiff, when he was proceeded against under Order XVII, Rule 3 CPC on account of non-production of evidence and his right to produce evidence was closed, consequently his suit was dismissed for lack of proof, on the same day. Respondent No, 1 filed an appeal against the judgment and decree dated 24.3.1998 assailing order passed by the trial Court under Order XVII, Rule 3 CPC before the Additional District Judge, Daska, District Sialkot. Pending this appeal, suit of the rival pre-emptor-Sh. Khurshid Mahboob, the petitioner, was decreed by the learned trial Judge on 24.2.1999. Petitioner filed an application before the Additional District Judge with whom appeal of Respondent No, 1 was pending praying that appeal may be dismissed as having become infructuous, in view of decretal of suit of the petitioner.
4. Additional District Judge took up both the matters, appeal of Respondent No, 1 and application of the petitioner, referred to above, on 22.6.2002 and vide his judgment and decree of even date, accepted the appeal of Respondent No, 1, set aside the order of the trial Court passed under Order XVII, Rule 3 CPC and remanded the case to the trial Court for its decision on merits, in accordance with law. Appellate Court while accepting appeal of Respondent No, 1 dismissed the application filed by the petitioner seeking abatement of appeal. Petitioner has now come up in revisional jurisdiction of this Court by filing two separate revision petitions, noted above, for setting aside the judgment and decree of the appellate Court.
5. Learned counsel for the petitioner submits that judgment and decree dated 22.6.2002 is not sustainable as Respondent No, 1 was rightly proceeded against under Order XVII, Rule 3 CPC for non-production of evidence and if order closing evidence of Respondent No, 1 is sustained order impugned becomes redundant. Learned counsel for the petitioner further contends that decree in favour of the petitioner has not been challenged by Respondent No 1 and thus has attained finality.
According to him, in presence of decree in favour of the petitioner, suit of Respondent No, 1 cannot proceed. Learned counsel for the petitioner in support of his submissions, referred to the case of Ghulam Qadir alias Qadir Bakhsh vs. Haji Muhammad Suleman and 6 others (PLD 2003 SC 180).
6. Conversely, learned counsel for Respondent No, 1 controverted the submissions of the petitioner and supporting decision of the appellate. Court, urged that for proceeding against a party under Order XVII, Rule 3 CPC, case should have been adjourned on his request, on the preceding date and according to him since the suit of Respondent No, 1, on the preceding date i,e, 26.2.1998, was not adjourned on request of the plaintiff/Respondent No, 1, he could not have been proceeded against under Order XVII, Rule 3 CPC and thus the order of the trial Court was rightly set aside by the appellate Court. He further argued that routine orders adjourning cases, not on request of the party penalized, do not furnish lawful basis for the orders, like the one passed in this case. He graded the preceding order, from which the case was adjourned to 24.3.1998 as a routine order. He in support of his stance, referred to judgments in the cases of Syed Tasleem Ahmed Shah vs. Sajawal Khan etc. (1985 SCM R 585) Hadi Bakhsh vs.' Additional District Judge and others (1998 CLC 610), Irshad Ali and another vs. Munawar Khan (2001 CLC 1899) and Chanan Din us. Ghulam Haider and 8 others (2002 CLC 574). It is also the. case of Respondent No, 1 that inspite of decree in favour of the petitioner, his suit will proceed because decree in favour of a rival pre-emptor can be adjudged in his suit. In support of his this assertion he referred to a judgment of the Honourable Supreme Court of Pakistan in the case of Qutab-ud-Din vs. Gulzar and 2 others (PLD 1991 SC 1109). Learned counsel for Respondent No, 1 further urged .that in view of the dictum of the Honourable Supreme Court of Pakistan in the case of Qutabud-Din (supra), petitioner's application seeking abatement of appeal before the Additional District Judge becomes meaningless.
7. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record. Right of Respondent No, 1 to produce evidence was closed on 24.3.1998 under Order XVII, Rule 3 CPC on account of his failure to produce evidence, as required by the Court. It is settled law that for taking penal action under the provisions in question, case on the preceding date should have been adjourned on the request of the party being penalized and this date in the case in hand is 26.2.1998. Order passed by the trial Court on 26.2.1998 observes that both the counsel for the parties were present and the Court after hearing arguments' on an application for summoning of the witnesses, allowed the same subject to payment of Rs, 50/- and adjourned the case for recording of evidence of Respondent No, 1/plaintiff. It is manifest from this order that the case was not adjourned on the request of Respondent No, 1 and the order passed is a routine order accepting application, as noted above. Since adjournment of case from 26.2.1998 to 24.3.1998 was not at the behest or on the request of Respondent No, 1 action under the provisions of Order XVII, Rule 3 CPC could not have been taken. I have borrowed this view point from the judgment of the Honourable Supreme Court in the case of Syed Tasleem Ahmed Shah vs. Sajawal Khan etc. (1985 SCM R 585). In this precedent case was fixed for evidence of the defendant and his counsel requested for adjournment, which was not objected by his adversary, the plaintiff. It was held that non-raising of objection by the plaintiff to the grant of adjournment does not amount to granting time to the defendant on his request and hence provisions of Order XVII, Rule 3 CPC could not have been applied as the order passed, was a routine order. This view was later affirmed in another judgment of the Honourable Supreme Court in the case of Haji Muhammad Ramzan Saifi vs Mian Abdul Majid and others (PLD 1986 S.C. 129) and other judgments relied by the learned counsel for the respondent.
8. There is another aspect of the case that Respondent No, 1 was plaintiff in the suit and his right to lead evidence was closed on 24.3,1998, by that time there was no material available for decision by the trial Court, in absence of which, no judicious determination could be made, as such, the trial Court should have proceeded under Rule 1 instead of Rule 3 of Order XVII of the Code of Civil Procedure. In this behalf, I an fortified by a chain of alighted judgments of the Honourable Supreme Court of Pakistan like in the cases of Muhammad Haleem and others vs. H.H. Muhammad Naim and others (PLD 1969. S.C. 270) and Syed Haji Abdul Wahid and another vs. Syed Sirajuddin (1998 SCM R 2296). Judgment in the case of Ghulam Qadir alias Qadir Bakhsh (supra) deals with the eventuality when neither the parties or any of them appeared nor produced their evidence, the Honourable Supreme Court held that the Court should, proceed under Order XVII, Rule 2 CPC. In this case plaintiff or his witnesses did not appear for long three years without any valid reason and thus invocation of Rule 3 of the above referred Order was held to be rightly invoked but in the instant case Respondent No, 1 was present through his counsel. From scan of record, as noted above, judgment of the Honourable Supreme Court of Pakistan, I find that appellate Court has rightly intervened, by accepting appeal of Respondent No, 1 and has correctly set aside the order dated 24.3.1998 of the trial Court passed by it under Order XVII, Rule 3 CPC and since the case could not have been decided on the available record, the case was correctly remitted back.
9. Taking up the objection of the petitioner that in view of decree in his suit, which has not been challenged by Respondent No, 1 and which, according to him, has attained finality, makes the appeal or suit of Respondent No, 1 infructuous, I find that both the suits by the rival pre-emptors were consolidated on 1.4.1996 and as such should not have been decided singly. Both the rival pre- emptors have been impleaded in these cross suits and since petitioner is a party to the suit of Respondent No, 1, his decree remains subject to scrutiny by the Court cognizant of the suit by Respondent No,
1. In a similar situation where two suits were filed and one of those was decided, the Honourable Supreme Court of Pakistan remanded the case by setting aside decree of the rival pre- emptor in the case of Qutabud-Din (supra). Since decree passed in favour of the petitioner is not subject matter of instant civil revision and if at all, it has attained finality, it is opened for the petitioner to assert so before the trial Court, before whom he is party as a defendant, as observed above. I cannot see an eye to eye with the learned counsel for the petitioner especially in view of authoritative dictum by the Honourable Supreme Court of Pakistan in the case of Qutab-ud-din (supra) and I feel that appellate Court has taken a rightful view on this application of the petitioner.
10. All this brings me to conclude that judgment and decree, impugned, is in consonance with the law, evidence on the file and the record, the appellate Court has not committed any illegality or irregularity and there had been no misreading or non-reading of the file, in absence of which, no interference is permissible under law. Both the revision petitions (Civil Revisions Nos, 2284 and 2285 of. 2002) having no merit in those, are consequently dismissed with no order as to costs.