1. ' This is plaintiff's second appeal which arises out of the following circumstances.
2. ' In the suit which was for a perpetual injunction with regard to 21 kanlas 9 marlas of land bearing Khasra Nos. 426 to 428 and 432, situated in Mahal Gharbi Hadbast No, 188, Tehsil and District Peshawar, a number of issues were framed on the 15th of January, 1976, and the case was then posted to 29th of January 1976, for lists of witnesses. On the later date, the lists of witnesses were filed by the parties and the case was then adjourned to 6th of April, 1976, for plaintiff's evidence. The case was then adjourned for the plaintiff's evidence from time to time but with no progress. On the 8th of December, 1979, the trial Court proceeded under Order XVII, rule 3 of the Civil Procedure Code and in consequence thereof dismissed the plaintiff's suit with costs for want of proof.
3. ' In the first appeal before an Additional District Judge, Peshawar, the plaintiff's counsel contended that the decision made by the trial Court was not sustainable and that the non-production of the evidence was not due to any fault on the part of the plaintiff. The Additional District Judge did not agree with these contentions and came to the conclusion that the order appealed against was well-founded and consequently dismissed the appeal with no order as to costs vide judgment dated 2-2-1980. Feeling aggrieved, the plaintiff has filed the present application for revision in this Court.
4. ' The learned counsel for the petitioner appearing before me strenuously contended that there was no justification' for the application of Order XXVII, rule 3, Civil Procedure Code, to the present case in as much as the relevant adjournment to the plaintiff for producing his evidence was not granted at his instance and secondly that the pat wari who had to be examined as a witness for the plaintiff was not summoned by the Court with the result that it could not be said that the default was that of the plaintiff. It was said that Order XVII, rule 3, Civil Procedure Code, was in its nature, a penal provision and that it could be pressed into service for deciding the suit finally on merits, on the proof of default by the parties concerned. To support his conclusion, the learned counsel for the petitioner referred to, and relied on, Industrial Sales and Services, Karachi and another v. Archifar Opal Laboratories Ltd., Karachi (1) and Lal v. Ghulam Muhammad and another (2).
5. It can hardly be doubted that some of the conditions to be satisfied before passing an order under the provision contained in Order XVII, rule 3, Civil Procedure Code, are that: (a) the provision being penal, it should be construed very strictly; (b) the facts of the case should not, a all, admit for any doubt as to default of the party, (c) the conduct of the party, proved to have committed the default, must not be excusable (d). No other party, witness or the Court itself should be, in any way, responsible wholly or partly for the default, e.g. If the party ,concerned ha done all that is necessary for the summoning of the witness and on the failure of the office to issue summons or after service due to negligence, of the witness himself he fails to appear before the Court, it cannot be treated as default of the party summoning the witness and (e) the time granted for the performance of any act mentioned in this rule must be a time granted to the party itself on its request and not to a witness, to the other party or by the Court due to its own exigencies relating to, Court work or proceedings in that particular case. In the instant case,
(1) PLD 1969 Kar. 418 (2) PLD 1975 Lab. 85 ' it will be seen that on the 29th of January 1976, the plaintiff was directed to produce his evidence on the 6th of April 1976. It appears that the file was requisitioned by the District Judge in connection with an appeal arising out of an application for the stay of proceedings. The file was received back by the trial Court on 2nd of July, 1977, when the plaintiff was directed to produce his evidence on the 25th of October 1977. It was also ordered that witnesses should be summoned provided the plaintiff deposits the money and the process fee. On the 25th of October 1977, the plaintiff's evidence was not in attendance and even the plaintiff himself did not appear in Court. The case was then posted to 28th January, 1978, for plaintiff's evidence. On the date so fixed, the plaintiff did not appear in Court nor were his witnesses present to give evidence. On the request made by the plaintiff's counsel, the case was adjourned to 22nd March 1978, for plaintiff's evidence. It so appears that on the said date as well as on 7-6-1978 to which date the case was adjourned on 22nd March 1978, the plaintiff's witnesses did not turn up nor did he himself appear in Court. The case was then posted to 27-9-1978 for the same purpose and the witnesses were ordered to be summoned on payment of process fee within three days. The plaintiff did not deposit the process fee with the result that the official witnesses were ordered to be summoned for 7-12-1978 on payment of process fee within three days. It is pertinent to note that the plaintiff and his non-official witnesses did not turn up on 27th September 1978 as well. On 7th December 1978, the plaintiff and his witnesses did not turn up and it was noted in the order-sheet that official witnesses could not be summoned for non-deposit of process fee on the part of the plaintiff and that the plaintiff is afforded last opportunity to produce his evidence on payment of Rs, 20 as costs on 22-2-1979. Even on 22-2-1979, the plaintiff and his witnesses did not turn up with the result that the case was posted to 12-5-1979. On this date, the trial Court recorded an order that since the Court time is over, the file should come up on 10th September, 1979. On the later date, the plaintiff and his witnesses were not present in Court with the result that tie case was posted to 8-12-1979 for the plaintiff's evidence.
6. Since the plaintiff's evidence was not present on 8-12-1979, the impugned order was passed by the trial Court. From all these facts, it will be seen that large number of adjournments were granted to the plaintiff to produce his evidence but he mad defaults in complying with these orders. The conduct of the plaintiff had all along been such that to my mind, the trial Judge was left with no other alternative but to proceed under Order XVII, rule 3, Civil Procedure Code. There is no doubt that the patwari was an official witness who had to be summoned by the Court but I am of the view that his nonappearance on the date fixed could not prevent the trial Court from passing the order it did. It may be pointed out that the dispute between the parties related to the amount of compensation regarding superstructure on the suit land and the patwari's evidence, in the circumstances, was of no consequence. It will not be out of place to paint out here that the learned counsel for the petitioner maintained that the Court should have recorded the statement of the plaintiff on 8th December 1979, as he was present in Court on the said date and that the Court, by not recording his statement acted in an improper manner. I am afraid, the contention so raised cannot prevail. There is no doubt that the plaintiff was present in Court on the aforesaid date but there is absolutely nothing on the record to suggest that he expressed his willingness to be examined as witness by the Court on that date. In such a state of affairs, it cannot possibly be said that the Court in passing the order in question acted improperly. It may be stated here that the authorities referred to, and relied on, by the learned counsel for the petitioner can have no application to the facts of the case before me in that the facts of those cases are distinguishable and can have no bearing upon the instant case. In short, I see no justification to interfere with the impugned decisions of the two Courts below.
7. ' There is yet another aspect of the case which cannot be lost sight of. It is alleged in paragraph 5 of the plaint that the entire compensation for the land and superstructure thereon had been realized by defendant No,
1. The plaintiff-petitioner puts his claim to the price of the superstructure claiming that defendant No, 1 was not entitled to realize it. It will be seen that the controversy between the parties, in point of fact, centers round the amount of compensation for the superstructure on the land in question which, according to the plaintiff-petitioner, had been realised by defendant No,
1. The property in question had been acquired for Ministry of Works, Government of Pakistan, Islamabad, in the year 1968 and the award was announced on 13th July, 1968. The plaintiff kept quiet for a period of about seven years and did not prefer any claim before the Land Acquisition Collector or the Acquisition Judge. It was only on 29th of April, 1975, that he instituted the present suit. In this way, he remained inactive for a period of about seven years.
8. Again, property has been acquired from defendant No, 1 and ever since its acquisition, the Government of Pakistan is its owner. Even if it be assumed for the sake of argument that the plaintiff is entitled to compensation for Abadi from defendant No, 1, he cannot possibly prevent defendants 2 and 3 from taking possession of the property. It is important to note that the plaintiff- petitioner has been able to prevent defendants 2 and 3 from taking possession of the property for the last more than 10 years. It need hardly be said that the exercise of the powers in revision I discretionary and it has been a long established practice in the High Courts that where - substantial justice has been done between the parties, powers of revision should neither be invoked nor exercised. In the case in hand, substantial justice has been done by the dismissal of the plaintiff's suit. Assuming, however, that the impugned decisions based on the provision of Order XVII, rule 3, Civil Procedure Code, are not sustainable in law, I would nevertheless decline to interfere in revision because of the fact that ends of justice demanded the dismissal of the suit which even otherwise was not competent. Since substantial justice has been done, this Court would be reluctant to interfere in revision.
9. ' As a net result of the foregoing discussion, the revision petition fails and is hereby dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.