' SYED HAMID ALI SHAH, J.- Three suits were pending in the Court of Miss Irfan Ejaz Civil Judge, Faisalabad. One among the three suits, was transferred to the Court of Mr. Javed Iqbal Warriach, Civil Judge, while other two cases were transferred to the Court of Mr Muhammad Usman, Civil Judge. Petitioner or his counsel failed to appear before the transferee Court, which resulted into invoking the penal provisions of Order XVII Rule, 3, C.P.C. And right to produce evidence was closed.
The decree of dismissal of suit was assailed in appeal, which met the fate of dismissal on 27-9- 2006. Concurrent findings of two Courts below, have now been assailed through instant revision.
2. Learned counsel for the petitioner has contended that petitioner perceived that all the three suits were transferred to the Court of Mr. Javed Iqbal Warriach. He came to know about the fact that one suit was transferred to the Court of Mr. Javed Iqbal Warraich while the other two suits stood transferred to the Court of Mr. Muhammad Usman, Civil Judge. Learned counsel added that dismissal of two cases, came to the knowledge of the petitioner when thfe petitioner failed to find the third suit in the cause list of Mr. Javed Iqbal Warriach on 5-5-2006. The appeals were filed on 10-5-2006, within 5 days of knowledge but learned appellate Court, dismissed the appeal on the question of limitation. It has been submitted that penal provisions under Order XVII Rule 3, C.P.C.
Can be invoked only through a speaking order by providing, last opportunity, on the preceding, dates.
3. ' Learned counsel for the respondent, on the other hand, has fully supported the impugned judgments and decrees. He has emphasized that another suit, was dismissed, in identical manner-. The dismissal of suit was assailed in appeal, whi9h also met the fate of dismissal on the question of limitation. Thereafter the revision petition was dismissed arid petition for leave to appeal was refused by the august Supreme Court. Learned counsel lastly argued that all the issues have already been decided and petition in hand merits dismissal.
4. Heard learned counsel for the parties and record perused.
5. While deciding the connected matter i.e. Civil Revision No.2191 of 2006, having identical facts, I have already dealt with the case through my order, dated 8-11-2006. Relevant para, of the order is reproduced:- "Contention of the learned counsel that all . The three cases were being heard together and there was an order of simultaneous disposal of suits, stands negated from the fact that request of the petitioner for consolidation of suits was declined and revision against the said order was dismissed. The suits could be transferred to various Courts and petitioner has not shown any vigilance in pursuing the cases. It was either due to wilful neglect or deliberate act of the petitioner to prolong litigation. Transferor Court directed the parties to appear before transferee Court on 27- 3-2006, in presence'of learned counsel for the parties- In such circumstances notice by transferee Court is not necessary. It is no believable that petitioner when appeared in one case, omitted to notice from the cause list that only one case has been transferred. Learned lower appellate Court has rightly observed that Court record has the precedence and affidavit to the contrary by the learned counsel has no evidentiary value. The findings of the learned appellate Court in this respect do not call for any interference. The Hon'ble Supreme Court of Pakistan in the case of "Fayyaz Hussain v. Akbar Hussain and others" (2004 SCM R 964) has held that' affidavit of learned counsel has no precedence over Court order."
' Order, dated 8-11-2006 was challenged before the Hon'ble Supreme Court in C.P. No.2442/L 'of 2006 and the apex Court upheld the decision of this Court through order,.Dated 10-1-2007 and observed:- "We find that petitioner had appeared before the transferee Court, therefore, no formal notice was required to be sent to him for that purpose. Since he failed to appear on the subsequent date, therefore, the trial Court was constrained to decide the matter on the basis of evidence of the parties. The appeal of the petitioner filed on 10-5-2006 was rightly found to be barred, by time. The Court had considered the plea of the petitioner but the same was not found tenable for justifiable grounds. The findings thus recorded by the High Court as well as the first appellate Court on the question of limitation are unexceptionable. This is not a fit case for grant of leave to appeal."
6. Since this specific issue has already been resolved and decided, petitioner has now repeated his arguments, which were urged in revision in a connected matter, instant revision has been filed on the same , facts, law and the subject-matter is also the same. In view of my findings referred hereinabove, which were affirmed by the Hon'ble Supreme Court of Pakistan, I do not see any merit in this petition, which is accordingly dismissed, with no order as to costs.