' SYED JAMSHED ALI, J.---The judgment and decree, dated 2-3-1994 passed by the learned Additional District Judge, Jhang, has been assailed in this petition whereby while reversing the judgment and decree, dated 6-2-1989 of the learned trial Court, the suit filed by respondents Nos.1 and 2 was decreed.It arises out of the following circumstances.
2. Vide registered sale-deed, dated 23-8-1978, respondents Nos. 1 and 2 allegedly sold the land in dispute in favour of the petitioner. Out of the aforesaid land, the petitioner gifted an area measuring 18 marlas through a registered deed, dated 25-5-1981 in favour of Haji Muhammad Bakhsh-respondent No,3. The remaining land was also sold by the petitioner to aforesaid Muhammad Bakhsh vide registeredsale-deed, dated 8-7-1981. Respondent No,3 sold the land in dispute in favour of respondent No,4 through an oral sale which was attested vide Mutation No,415 on 12-8-1984.
3. Meanwhile, on 23-6-1984, respondents Nos.1 and 2 filed a suit for cancellation of the registered sale-deed, dated 23-8-1978 and the subsequent transactions referred to above on the ground that they were defrauded, they only intended to execute a lease deed but because of their ignorance and illiteracy, the sale-deed was manipulated and got registered by the petitioner.
4. The suit was contested. Necessary issues were framed. Evidence of the plaintiffs was recorded on 13-6-1987 and the case was posted for the evidence of the petitioner on 20-9-1987 on which date the petitioner did not produce the evidence and on his request, the case was adjourned to 27-10- 1987. Again on the said date, the petitioner did not produce the evidence. Accordingly, his evidence was closed and the case was adjourned to 24-11-1987 for the evidence of respondents Nos. 3 and 4 on 24-11-1987, the evidence of respondents Nos. 3 and 4 was also closed.
5. The learned trial Court, on considering the evidence of the plaintiffs-respondents Nos. 1 and 2 on Issue No,7, found that it was not sufficient and that a presumption of correctness was attached to the certificate of the Sub-Registrar which showed that respondents Nos.1 and 2 had appeared before the Sub-Registrar and had accepted receipt of the sale consideration. Accordingly, the suit filed by respondents Nos.1 and 2 was dismissed vide judgment and decree, dated 6-2-1989.
6. Respondents Nos.1 and 2 filed an appeal before the learned District Court. On re-consideration of the evidence of the plaintiffs-respondents Nos.1 and 2 the learned first appellate Court found that the plaintiffs were illiterate ladies and the law regarding "Pardah Nasheen" lady was applicable to them and the onus of proof of genuineness of the transaction lay on the beneficiary but the petitioner did not produce any evidence. Accordingly, the appeal filed by respondents Nos.1 and 2 was allowed vide judgment and decree, dated 2-3-1994, the judgment and decree, dated 6-2-1989 of the learned trial Court was set aside and the suit filed by the said respondents was decreed.
7. Against the judgment and decree, dated 2-3-1994, two revision petitions were filed. One by Haji Muhammad Bakhsh-respondent No,3 (C.R. No,1708-94) and the other by the petitioner i.e,, the instant revision petition. The revision petition filed by respondent No,3 was dismissed in limine vide order, dated 3-5-1994 of this Court. On the question whether sufficient opportunity was allowed to respondent No,3to produce his evidence, this Court observed that the order, dated 24-11-1987 closing the evidence of respondent No,3, had not been brought on the record to enable this Court to consider as to whether the closure of evidence of the defendants was justified or not. The reasoning of the first appellate Court in the judgment, dated 2-3-1994 was affirmed.
8. Against the order, dated 3-5-1994, C.P. No,740-94 was filed before the Honourable Supreme Court by respondent No,3, in which leave was granted. It is not disputed that this appeal (C.A.
No,1289 of 1995) was dismissed for non-prosecution on 30-1-2001. C.M.P. No,784-2001 was filed before the Honourable Supreme Court for restoration of the aforesaid appeal which according to the learned counsel for the petitioner, was dismissed on 18-10-2001. These orders are not on the record of this petition but the learned counsel has shown to me, the said orders from his brief.
9. The learned counsel for the petitioner submits that 20-9-1987 was the first date of evidence of the petitioner which was fixed after the closure of evidence of plaintiffs-respondents No,1 and 2 and the only opportunity granted to the petitioner on his request for his evidence was for 27-10-1987 on which date the evidence of the petitioner was closed. He submits that the issues in the case were framed on 30-4-1986 and the plaintiffs-respondents concluded their evidence on 13-6-1987 while the learned trial Court closed the evidence of the petitioner hastily and in an arbitrary manner on the sole ground that it was an old case. He placed reliance on Ajab Khan v. Karimi Industries and others (PLD 1980 Peshawar 259) and Wadera Dalel Khan and 7 others v. Province of West Pakistan and 6 others (PLD 1970 Quetta 79).
10. On the other hand, the learned counsel for respondents Nos. 1 and 2 submits that since, the disputed land had been transferred in favour of respondents Nos.3 and 4, the petitioner had no interest in the subject-matter and has no locus standi to maintain this petition. He submits that respondent No,3 had assailed the impugned judgment and decree, dated 2-3-1994 before this Court but his revision petition was dismissed on merits after considering not only the sufficiency of the evidence produced by respondent Nos. 1 and 2 but also the question whether the evidence of respondent No,3 was or was not rightly closed. Further, the appeal filed before the Honourable Supreme Court by respondent No,3 was also dismissed. Therefore, since this Court has already expressed its opinion on the merits of the case, no interference is called for otherwise it will result in conflicting judgments. It is next submitted that the petitioner had been allowed adequate opportunity to produce his evidence but he deliberately defaulted. It is next submitted that respondents Nos. 1 and 2 are illiterate "Pardah Naheen" ladies andthe principle of appreciation of the evidence in such cases had correctly been applied by the learned first appellate Court.
11. The submission made by the learned counsel for the parties have been considered. As far as the objection of learned counsel for respondents Nos. 1 and 2 as to maintainability of this revision petition is concerned, suffice it to say that if the transaction made by the petitioner on the basis of alleged registered sale-deed fails, he is bound to reimburse the sale consideration to the vendee.
Therefore, notwithstanding dismissal of revision petition of respondent No,3, the petitioner, could maintain this revision petition to avoid any pecuniary liability. As far as the question of sufficiency or otherwise of the evidence of respondents Nos. 1 and 2 is concerned, the impugned findings of the learned first appellate Court are based on the ex parte evidence of respondents Nos. 1 and 2.
12. I have perused the original record. The evidence of the plaintiff was closed on 13-6-1987 and the case was listed on 20-9-1987 and on the next date i.e, 27-10-1987, the evidence of the petitioner was closed. On both the dates the learned counsel for the petitioner was out of station. In any case, it was the only opportunity allowed on the request of the petitioner. It may be noted that provisions of Order XVII Rule.3 of the Code of Civil Procedure are penal in nature and have to be applied with due care and caution. And, if a litigant is to be visited with a penalty, such as the closure of his evidence, he is at least entitled to put to notice. The perusal of the order, dated 20-9-1987 shows that the petitioner was not even put to a notice that if on the next date of hearing his evidence was not produced, his right to lead evidence shall be closed. The only ground to apply the penal provision of closure of evidence of the petitioner was that it was a three years old case, ignoring from consideration that interest of justice predominantly required that the petitioner was allowed a reasonable opportunity to produce evidence which in this case, to my mind, was not allowed to him resulting in miscarriage of justice.
13. As far as the order, dated 3-5-1994 of this Court, dismissing the revision petition of respondent No,3 is concerned, the petitioner having an independent right to approach this Court in a revision petition, it did not operate against him particularly in view of the fact that the said revision petition was dismissed in limine and the petitioner had no occasion to place his view point before this Court. It may also be noted that this Court did not decide the question of the legality of closure of evidence of respondent No,3 in C.R. No,1708 of 1994 on the ground that the order, dated 24-11-1987 had not been produced on the record. In fact the evidence of respondent Nos.3 and 4 was closed vide order, dated 24-11-1987 and although his matter is not before me yet the perusal of the record shows that 24-11-1987 was the first date fixed in routine for the evidence of respondents Nos. 3 and 4.
14. As far as the contention of the learned counsel for respondents Nos.1 and 2 that the said respondents had been defrauded by the petitioner is concerned, this allegation has to be finally determined after recording the evidence of the petitioner. Therefore, it is neither necessary nor desirable to examine this aspect of the matter in this petition.
15. Accordingly, this revision petition is allowed, the impugned judgments and decrees of the learned two Courts, dated 6-2-1989 and 2-3-1994 respectively and the order, dated 27-10-1987 of the learned trial Court, to the extent of the petitioner alone closing his evidence are hereby set aside and the case is remanded to the learned trial Court to decide it afresh after affording reasonable opportunity to the petitioner to produce his evidence. It is directed that a total period of two months will be allowed to the petitioner from the date of receipt of the record from this Court to conclude his evidence including examination of the official witnesses, if any. This direction is being rendered in view of the fact that the suit was instituted on 23-6-1983. The plaintiffs-respondents will also be entitled to produce evidence in rebuttal of the evidence of the petitioner, if any. The petitioner and respondents Nos.1 and 2 are directed to appear before the learned trial Court on 10- 3-2004. The record of the learned trial Court shall be immediately returned. No order as to costs.