ABDUL SHAKOOR PARACHA, J.--With the concurrence of learned counsel for parties, this case is admitted for regular hearing and is being treated as Pacca case and the same is decided as such.
2. Faiz Ullah petitioner filed a suit for possession of land measuring 14 Kanals situated in village Koura Tehsil Daska District Sialkot claiming superior right of pre-emption against Ghulam Rasul.
The land was sold by Riaz Ahmad etc. Vide Mutation No.210 dated 7-3-1996 in consideration of a sum of Rs.75,000 but the petitioner stated that amount of Rs.1,75,000 was fictitiously shown as sale consideration. It was stated in the plaint that the petitioner after fulfilling Talb filed a suit on 4-7- 1996. Respondents submitted written statement and controvert the allegation levelled in the plaint.
From the divergent pleadings of the parties, issues were framed. The case was fixed for the evidence of the plaintiff-petitioner on various dates and the same was adjourned for one or other reasons. On 18-5-1999, the evidence of the petitioner-plaintiff was present but the case was adjourned for last final opportunity to 3-6-1999. On 3-6-1999, the evidence was present but the counsel requested for adjournment and the case was adjourned to 8-9-1999. On 8-9-1999, evidence of the petitioner-plaintiff was not present but the counsel for parties were present and it was adjourned for 17-10-1999 with last opportunity. On 7-10-1999, the Civil Judge proceeded to dismiss the suit by applying the provision of Order XVII, rule 3, C.P.C. Petitioner-plaintiff filed an appeal against the judgment and decree which was also dismissed by the appellant Court, hence this petition.
3. Learned counsel for petitioner contends that on 8-10-1999, the case was not adjourned on the request of the petitioner alone. Adjournment was in routine and was not at the behest or on request of the petitioner, therefore, the penal action under Order XVII, rule 3, C.P.C. Could have not been taken. Reliance has been placed on Sheikh Khurshid Mehboob Alam v. Mirza Hashum Baig and another (2004 YLR 818). Further that petitioner had to produce to evidence of summoned witnesses and therefore, the adjournment to examine the same should have been granted. He relies on Shah Muhammad and 8 others v. Shaukat Ali and 17 others (1999 CLC 850). It is also contended that a request was made on 7-10-1999 for adjournment of the case due to the reason that a quarrel of the plaintiff-petitioner already had taken place, therefore, the evidence could have not been produced. The case was not adjourned instead the evidence was closed by invoking the provisions of Order XVII, rule 3, C.P.C. Which is not warranted under the law. Case of Muhammad Siddique v. Syed Zulfiqar Haider and others (1995 CLC 431) has been cited in support of the contention.
4. On the other hand, learned counsel for respondent contends that the case remain pending for more than five years and it was adjourned for one or other pretext, the plaintiff could not produce the evidence. Even the Jarnabandi and mutation were not produced, therefore, the provision of Order XVII, rule 3, C.P.C. Have rightly been applied by the Court. Adds that the judgments cited at the bar by the learned counsel for petitioner do not support the case of the petitioner. Petitioner is not entitled for any relief and no irregularity or illegality has been committed by the trial Court as well as the Court of appeal. Civil revision is liable to be dismissed.
5. I have heard the arguments of the learned counsel for parties and perused the record with their assistance. Perusal of order-sheet would reveal that on 15-12-1998, the presiding officer was on leave. On 4-2-1999, witnesses of the petitioner-plaintiff was not present and the case was adjourned on 20-3-1999. Nisar Ahmad and Nasir Ahmad were the witnesses of the petitioner and on 20-3-1999, they were present but the case was adjourned for 18-5-1999. On 18-5-1999, the evidence was available but the case was adjourned by giving last opportunity. On 3-6-1999, the evidence of the plaintiff-petitioner was present but the case was adjourned on the request of the petitioner counsel. On 8-9-1995 in the presence of the counsel for the parties, the following order was passed. {{URDU TEXT}}
6. Perusal of the above said order would show that the case was not adjourned on the request of the party alone who has been penalized. For taking penal action under Order XVII, rule 3, C.P.C., the case on preceding date should have been adjourned on the request of the party being penalized.
Were adjournment was in routine and was not at the behest or on request of a party, then penal action under Order XVII, rule 3, C.P.C. Could not be taken. Reliance has been placed on Syed Tasleem Ahmed Shah v. Sajawal Khan and others (1985 SCM R 585) and Sheikh Khurshid Mehmod Alam v. Mirza Hashum Baig and another (2004 YLR 818). It is also the fact that the witnesses were present on certain dates and summoned witnesses could not be examined. Mere pendency of the case for more than four years is no ground to invoke the penal provision under Order XVII, rule 3, C.P.C. The case of the parties cannot be decided by trapping them into the technicalities of the procedure. In the circumstances of the case when summoned witnesses were to be examined and they were present on some date, trial Court should have exercised the discretion in favour of the petitioner to adjourn the case rather to take harsh action of closing the evidence of the petitioner by invoking the provision of Order XVII, rule 3, C.P.C. And by closing the evidence dismissing the suit which is not warranted under the law.
7. For what has been discussed above, this civil revision is allowed. The judgment and decree of the trial Court dated 7-10-1999 and 20-1-2004 passed by appellate Court are set aside. The case is remanded to the trial Court with a direction to grant at lease one opportunity to the petitioner to lead his evidence. The case is pending adjudication since 4-7-1996, learned Civil Judge is directed to decide the same expeditiously and preferably within six months.