'SYED QALB-I-HASSAN, J.---The facts so far as those are relevant for the purpose of the disposal of this revision petition are that respondent No,1, filed a suit for Specific Performance, permanent and mandatory injunction against respondent No,2 and the petitioner. Petitioner entered appearance and contested the suit; whereas respondent No,2 has filed a conceding written statement and thereafter appeared in the Court and made a statement that the suit may be decreed in favour of respondent No,
1. In view of the conceding written statement the learned lower Court has decreed the suit of respondent No,1 to the extent of five Agro Farm of 20 Kanal each and directed respondent No,2 to transfer the said Agro Farm in favour of respondent No,1 through the petitioner.
Petitioner filed a petition under section 12(2) C.P.C. For setting aside the judgment on various grounds. It is contended in the petition under section 12(2), C.P.C. That respondents Nos.1 and 2 had filed a suit in-collusion with one of the member of the staff of petitioner only to get admission from petitioner authority regarding the entitlement of respondent No,2 pertaining to Agro Farm allegedly allotted to them. It is further contended that no Agro Farm had ever been allotted by petitioner to respondent No,2 and in this view of the matter, the suit for specific performance was not proceedable against a non-existing property. It is stated that after the statement of respondent No,2 in the Court, the parties were not at variance, therefore, the suit could not be decreed in view of the law settled on the point and respondent No,1 left with no cause of action, therefore, suit should have been dismissed instead of decreeing the same against a non-existing property. It is also stated that the written statement filed in collusion with one of the member of the staff of petitioner was neither approved by the Law Directorate nor vetted from the Law Directorate or Member Incharge, therefore, admission of eligibility of respondent No,2 for allotment of Agro Farm has no legal sanctity. It is stated that the collusion of respondents Nos.1 and 2 is obvious that after passing of the decree in favour of respondent No,1, respondent No,2 has filed another suit for declaration for securing allotment of Agro Farm/plots even after diverting himself from all the rights allegedly accrued to him in respect of Agro Farm. Respondent No,2 entered appearance, contested the petition under section 12(2), C.P.C. And submitted his written reply. Learned trial Court framed the following issues:--
(1) Whether the judgment and decree dated 27-1-2000 has been obtained by playing fraud and misrepresentation? If so, whether the decree is liable to be set aside and cancelled? OPP (2). Whether the petitioner has no cause of action or locus standi to file the present petition? OPR (3). Whether the application is not maintainable? OPR (4). Whether the application is motivated with mala fide intention to make hindrance in the execution of decree? OPR (5). Whether the petitioner is estopped by his words and conduct to file the present petition? OPR (6). Whether the application is frivolous and as such respondents are entitled for special costs?
OPR (7). Relief.
2. The petition was fixed for recording of the evidence of petitioner for several dates but the petition was adjourned due to lack of evidence on the part of petitioner. However, on the last date of hearing, petitioner submitted an application for adjournment of the case on the ground that the entire record pertaining to subject matter of the suit and the instant petition is requisitioned by the N.A.B. Authority, therefore, the petition under section 12(2), C.P.C. Be adjourned for any other date for recording of the evidence of petitioner. Learned trial Court vide order dated 2-1-2003 invoked the provisions of Order XVII, Rule 3, C.P.C. And closed the evidence of petitioner and on the same date passed an order and dismissed the petition under section 12 (2), C.P.C. Petitioner has challenged the validity and propriety of the order dated 2-1-2003 through the instant revision petition.
3. Learned counsel for petitioner contended that after passing of the judgment impugned in petition under section 12(2), C.P.C, in inquiry was conducted about the genuiness of there land statedly acquired by petitioner from respondent No,2 and in lieu of that land Agro Farms were approved and it was revealed that a decision from the board of the C.D.A. Was got in-collusion with one of an employee Mr. Nadeem Akbar Malik on the basis of forged and fake revenue record prepared by respondent No,2 and an F.I.R. Was registered against the persons involved in forgery and tempering, thereafter, a reference was filed with N.A.B. Authorities. The entire forged revenue record and other documents relating to Agro Farm, subject matter of the suit were under the custody of N.A.B. Authority in Reference No,64, therefore, petitioner moved an exhaustive application narrating the whole affairs with the request of one adjournment and has also shown a sufficient cause for adjournment but the learned lower Court has invoked the provisions of Order XVII, Rule 3, C.P.C. And consequently dismissed the petition without applying its judicial mind in the circumstances of the case. Learned counsel further contended that the evidence of petitioner can be closed only if petitioner has contumaciously failed to produce its evidence. Learned counsel further contended that as already submitted the entire record was requisitioned by the N.A.B.
Authority; therefore, petitioner was unable to produce evidence without the record pertaining to the Agro Farm, subject matter of the suit.
4. Learned counsel for respondents has vehemently contested the contentions raised by the learned counsel for petitioner and contended that as many as eleven opportunities were granted to petitioner but petitioner has miserably failed to substantiate his contentions raised in the application under section 12 (2), C.P.C. By oral as well as documentary evidence. Therefore, the learned trial Court has rightly closed the evidence of petitioner. Learned counsel for respondent has placed reliance on "Sufi Ghulam Mohy-ud-Din v. Khushi Muhammad, etc" (1997 CLC 636) and prayed for the dismissal of the revision petition with costs.
5. Arguments heard and record perused.
6. Petitioner has moved an application on the ground that the entire record pertaining to Agro Farm, subject-matter of the suit for specific Performance of Agreement, out of which the instant petition under section 12 (2), C.P.C. Has arisen, was requisitioned by the N.A.B. Authorities and sought an adjournment on this ground. The learned trial Court has closed the evidence of petitioner vide order A dated 2-1-2003 and on the same day passed the order dismissing the petition under section 12 (2), C.P.C. On the ground that numerous opportunities were granted to petitioner for leading evidence but petitioner has failed to record any evidence in support of his petition. The above said fact was not denied by respondents and the Honourable Court has even not ascertained the truth and falsity of the ground taken by petitioner in his application for adjournment and proceeded to decide the petition after invoking the provisions of Order XVII, Rule 3, C.P.C. The learned trial Court was bound to enquire into and in case the petitioner was able to show a reasonable A cause and sufficient ground, he was entitled to grant of further indulgence.
The petitioner has submitted and application for adjournment, the contents of the same are as follows:-- {{URDU TEXT}} "Reference {{URDU TEXT}}
7. Contents of the application show that the entire record pertaining to subject matter of the suit in which the petition under. Section 12 (2), C.P.C. Was requisitioned by N.A.B. Authorities and on this ground, the petitioner has sought an adjournment and has shown a sufficient cause for a adjournment. In case title "Sri Nath v. Mata Prasad and others" (AIR 1935 Allahabad 476). It is held that if sufficient cause is shown at any stage of the suit, the Court may grant time to the parties or to any one of them and may from time to time adjourned the hearing of the case. The learned trial Court has invoked the provisions of O.XVII, Rule 3, C.P.C. On the ground that numerous opportunities have already been granted to the petitioner but the petitioner has failed to lead any evidence and has not considered the application moved by the petitioner on the fateful day. Learned trial Court has failed to appreciate that previous opportunities were granted to the petitioner on their on merits and circumstances and previous default for not leading evidence cannot be judged for sufficiency of adjournment on 2-1-2003, when the order was passed of closing the evidence of the petitioner. The Honourable Supreme Court in case titled "Seth Shivrattan G. Mohatta and another v.
Messrs Mohammadi Steamship Co. Ltd. PLD 1965 SC 669 as held in the following:-- "It is true that the plaintiff had committed more than one default in the prosecution of the suit and the application for restoration was at one time allowed to be dismissed in default of appearance, but as those defaults were on their merits condoned by the Court it will be wrong to take those defaults into consideration in judging the sufficiency of cause for nonappearance of the plaintiff on the Ist of May, 1959."
8. The Honourable Single Judges of the Lahore High Court in cases titled Abdul Rehman v. (Mst.)
Amir Khatoon etc. KLR 1985 Civil Cases 649 and "Messrs Raheem Steel Re-Rolling Mills and 4 others v. Messrs Karim Aziz Industries (Pvt.) Ltd" (1988 CLC 654) have followed the principle laid down by the Honourable Supreme Court and observed that in deciding the sufficient cause for adjournment previous defaults were not to be taken note of whether a party is entitled to grant of further opportunity on the said date.
9. In this view of the matter, the learned trial Court ought to have granted some time to the petitioner for according of evidence and production of record pertaining to the subject-matter of the suit, especially when valuable rights of statutory body were involved in the petition.
10. Resultantly, the civil revision is accepted, the impugned order/judgment is set aside and trial Court is directed to provide an opportunity to the petitioner to lead evidence, therefore, the petitioner is directed to appear before the learned trial Court on 15-12-2008 and the learned trial Court will fix the case for recording of evidence of the petitioner.
Civil Revision is accepted.