' MEHMOOD MAQBOOL BAJWA, J.- Assails the legality of the judgment dated 3-2-2010 recorded by the learned Additional District Judge, Lahore whereby the appeal preferred by the present respondents . ' ' ' Assailing the vires of judgment and decree dated 17-12-2008 drawn up by the learned Civil Court Lahore was accepted while setting aside the judgment and decree dismissing the suit of respondents for want of evidence. One opportunity was directed to be given to the respondents for production of evidence subject to payment of costs to the tune of Rs,6,000.
2. The learned counsel for the petitioner while making reference to the interim order sheet maintained that more than sufficient opportunities were granted to the respondents for production of evidence. Elaborating the argument, it was maintained that issues were cast on 10-11-2006 and.
List was posted for evidence of present respondents being plaintiffs for 25-11-2006. Contended that four opportunities were granted to the respondents uptil 30-4-2007 when on 16-5-2007 it was pointed out at the instance of present petitioner that an application under Order XII Rules 5 and 8 of the Code of Civil Procedure made by the petitioner is still sub judice and thereafter time was consumed in order to dispose of the said application. Submitted that on 2-7-2008 direction was issued to the respondents, for production of evidence adjourning the suit for 2-9-2008 on which date evidence was not in attendance resulting in adjournment for 16-10-2008 on which date no proceedings were conducted due to leave of learned Presiding Officer and it was adjourned for 19- 11-2008 when it was adjourned for 17-12-2008 granting last opportunity to the respondents and failure of the respondents on the notified date resulted in closure of their evidence, dismissing of suit for want of evidence vide judgment and decree of even date. Maintained that more than sufficient opportunities were granted to the respondents and as such the findings of learned first appellate Court for provision of one opportunity to respondent for production of evidence is legally not sustainable. Contended that though law favours adjudication on merits but nevertheless same cannot be exploited by a party who is not vigilant but indolent. Further submitted that since the respondents failed to produce their evidence without any justified cause, therefore, the learned trial Court rightly closed the evidence of the respondents to which no exception should have been taken. Submitting the arguments, the learned counsel for the petitioner sought help from the dictum laid down in MUNAWAR HUSSAIN v. ADDITIONAL DISTRICT JUDGE, JHELUM and 3 others (1998 SCM R 1067), Mrs. KHALIDA BEGUM v. LAHORE DEVELOPMENT AUTHORITY, through Director General LDA PLAZA and another (2002 YLR 1687), MUHAMMAD ASGHAR, v. MUHAMMAD ASHRAF and 6 others (2006 YLR 1166), Mian MUHAMMAD RASHID and another v. MUSHTAQ AHMAD and 14 others (2006 YLR 3278) and MAQBOOL AHMED v. FARYAD ALI (PLD 2011 Lahore 217).
' On the other hand, the learned counsel for the respondents while defending the impugned judgment maintained that discretion was exercised in favour of the present respondents by the learned first appellate Court on the base of sound reasons as the provisions of Order XVII, Rule 3 of the Code of Civil Procedure were not attracted to the facts of the case, therefore, no exception can be taken to the impugned judgment.
3. Issues were cast on 10-11-2006 and suit was adjourned for evidence of respondents for 25-11- 2006. Admittedly nine opportunities were granted to the respondents for production of evidence but they failed to produce the same and as such last opportunity was granted to them on 17-12- 2008 when again evidence of the respondents was not in attendance resulting in closure of evidence and dismissal of suit for want of evidence. In view of the matter, one cannot find in disagreement with the contention of learned counsel for the petitioner that more than sufficient opportunities were granted to the respondent for production of evidence but for one or other reason having no justification the respondents failed to produce their evidence.
4. The question for consideration before this Court is whether the learned trial Court rightly applied the provisions of Order XVII, Rule 3 of the Code of -Civil Procedure which is penal in nature. In order to appreciate the contentions of learned counsel for the parties it is desirable to make reference to the provisions of Order XVII, Rule 3 of the Code of Civil Procedure which is reproduced for ready reference: "Where' any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith."
It suggests that in order to attract the penal provisions referred to above time must have been granted by the Court for doing certain acts i,e,
(1) to produce the evidence;
(2) to cause attendance of their witnesses;
(3) or to perform any other act necessary to the further progress of the suit.
' Simultaneously, the said provision requires that time must have been granted by the Court at the request of the defaulting party. If the time has not been granted at the instance of party against whom order is required to, be made then admittedly the penal provision of Rule 3 of Order XVII of the Code of Civil Procedure would not be applied against the party though in default on the date notified. Keeping in view the text of the provisions reproduced the interim order sheet has to be perused. The respondents were provided last opportunity for 17-12-2008 vide order dated 19-11- 2008, said order is totally silent whether the evidence of respondents was in attendance or not on the said date. The said order is also nowhere suggestive that any request was ever made at the instance of respondents for an adjournment or an opportunity to produce evidence. It just suggests adjournment in the case for 17-12-2008 by granting last opportunity as per previous order. In the circumstances it cannot be said by any stretch of imagination that the date on which the evidence of respondents was closed was ever given at the instance of respondents and as such undeniably the provisions of Order XVII, Rule 3 of the Code of Civil Procedure were not attracted to the facts of the case. Mere fact that last opportunity was granted to the respondents for production of evidence was not sufficient to apply the penal provisions as C the time was not granted at the instance of respondents.
5. I have gone through the Rule of law enunciated in the reports relied upon by the learned counsel for the petitioner. Though the ratio expounded in the reports cannot be questioned but nevertheless in the attending circumstances same would. Be of little help to the present petitioner.
In MAQBOOL AHMED v. FARYAD ALI (PLD 2011 Lahore 217) while making reference to the provisions of Order XVII, Rule 3 of the Code of Civil Procedure, it was held that adjournment must have been granted on the specific request of the party to do the particular act. In the present case, as referred earlier the order dated 19-11-2008 is totally silent that the next date was fixed at the instance of respondents. Similarly, perusal of the facts of report in MUNAWAR HUSSAIN v. ADDITIONAL DISTRICT JUDGE, JHELUM and 3 others (1998 SCM R 1067), suggests there was an adjournment sought at the instance of petitioner (landlord) which was granted and on the adjourned date sought by the (landlord) he failed to produce evidence resulting in closure of his evidence which order was upheld uptil the Hon'ble Supreme Court of Pakistan. In the case Mrs. KHALIDA BEGUM v. LAHORE DEVELOPMENT AUTHORITY through Director General, LDA PLAZA and another (2002 YLR 1687) while dealing with the facts it was held that despite grant of innumerable opportunities the petitioner being plaintiff failed to produce evidence resulting in closure of same but nevertheless in the said suit adjournment was claimed by the plaintiff and despite availing the opportunity he failed to produce evidence on the adjourned date. Likewise, in the case of "MUHAMMAD ASGHAR and another v. MUHAMMAD ASHRAF and 6 others" (2006 YLR 1166) and Mian MUHAMMAD RASHID and another v.
MUSHTAQ AHMAD and 14 others (2006 YLR 3278), the adjournment was given at the instance of defaulting party and as such taking in view the conduct of the defaulting party and adjournment at his instance it was held that even after availing more than sufficient opportunities failure of the defaulting party to produce their evidence justified the order regarding the closure of evidence.
' In the present case as discussed earlier there was no such request at the instance of respondents seeking adjournment and as such the penal provisions of Order XVII Rule 3 of the Code of Civil Procedure was not attracted to the facts of the case.
6. Provisional jurisdiction can be exercised in case of non-assumption, illegal assumption or exercise of jurisdiction illegally or with material irregularity.
7. Though while making reference to para-4 of the impugned judgment it was maintained at the instance of petitioner that judgment of the civil Court was set aside on humanitarian ground but nevertheless the petitioner was obliged and required to suggest jurisdictional defect in the impugned judgment which has to be considered by this Court while taking into consideration the material available on record.
In view of the above discussion, it cannot be said that the impugned judgment suffers from any jurisdictional defect within the meaning of section 115 of the Code of Civil Procedure, 1908.
8. Pursuant to above discussion, the revision petition being devoid of force is dismissed. 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.