MEHMOOD MAQBOOL BAJWA, J. --- Legality of orders dated 20.9.2010 and 5.11.2010, recorded by learned Civil Judge and learned Addl. District Judge Shakargarh, have been called in question at the instance of petitioners (defendants) in the suit for declaration and perpetual injunction.
2. Facts in brief for the disposal of revision petition are that respondent instituted suit claiming proprietary and possessory rights in respect of property subject-matter of the suit on the strength of mutation No. 419, dated 15.3.2002, who also assailed the vires of entries in the revenue record entered in favour of predecessor-in-interest of present petitioners. The suit was contested and after casting necessary issues, it was posted for evidence of respondent being plaintiff. The respondent produced four witnesses on 19.12.2009. However, right of cross-examination of the petitioners was reserved and suit was adjourned for 23.1.2010. Adjournment was granted for 14.2.2010 due to non-availability of Advocates. However, the file was put up on 15.2.2010 .Due to Holiday when again adjournment was made for cross-examination due to strike by the Advocates and it was adjourned to 15.3.2010. On two successive dates. Evidence of respondent was not present, again adjourning the suit for 24.4.2010, on which date only one witness was in attendance and suit was adjourned for 22.5.2010. Adjournment was given for 10.6.2010 due to non-appearance of Advocates. On 10.6.2010, though the witnesses were in attendance but adjournment was granted at the instance of petitioners maintaining that learned counsel for the petitioners used to visit Shakargarh only on Saturday and adjournment was granted accordingly for 10.7.2010. On which date, witnesses were in attendance but request was made for adjournment due to observance of strike by Advocates. The suit was fixed for 20.9.2010 when again request was made at the instance of petitioners for adjournment due to non-availability of principal counsel, which request was declined, resulting in closure of right of petitioners to cross-examine the witnesses. The application for review of the order was made which was dismissed by the learned Trial Court vide order dated 23.10.2010. The petitioners preferred an appeal calling in question the order dated 20.9.2010 closing the right of petitioners to cross-examine the witnesses. Which was dismissed being barred by time vide order dated 5.11.2010.
3. Heard.
Learned counsel for the petitioners maintained that order dated 20.9.2010 could not have been made by the learned Trial Court under Order XVII, Rule 3 of The Code of Civil Procedure, 1908 as the same was not attracted to the facts of the case keeping in view the text of the said provision.
Further maintained that only two opportunities were granted to the petitioners for cross- examination of the witnesses though the respondent procured sufficient opportunity to produce evidence. Further argued that counsel for the petitioners, who is practicing at Lahore could not appear before the Court due to his occupation and as such the order regarding closure is not sustainable. Referring to the order dated 10.6.2010, learned counsel for the petitioners maintained that since the counsel for the petitioners is practicing at Lahore, therefore, request was made to the learned Trial Court to fix the lis for any Saturday and as such the absence of principal counsel of the petitioners on the day when impugned order was made was neither intentional nor negligent. Placing reliance upon the dictum laid down in, "Mst.
BANORI v. JILANI through Legal Heirs and others" (PLD 2010 Supreme Court 1186) and "Mian MUHAMMAD ASIF v. FAHAD and another" (2009 SCM R 1030), it was maintained that the question of limitation is not relevant in revisional matter.
Controverting the arguments, the learned counsel for the respondents at the very outset maintained that present petitioners after dismissal of their application for review of order preferred an appeal, which was dismissed being barred by time. Placing reliance upon "MUHAMMAD ISLAM v.
INSPECTOR-GENERAL OF POLICE, ISLAMABAD and others" (2011 SCM R 8), it was maintained that question of limitation cannot be considered "a technicality simpliciter" which was rightly pointed out by the learned Appellate Court. Further argued that the petitioners did not assail the vires of order dated 23.10.2010 dismissing the application for review before the learned Appellate . Court.
Submitting arguments on facts, it was maintained that there was no justification at the instance of petitioners for getting adjournments frequently as the lis was pending since 2005.
4. Arguments canvassed by learned counsel for the petitioners with reference to limitation in revisional matter on the strength of rule of 2009 SCMR 1030), cannot advance the plea of petitioners because question of limitation is not a moot point before this Court. Argument advanced with reference to non-applicability of provision of Order XVII, Rule 3 of The Code of Civil Procedure, 1908. Though appears to be attractive but cannot advance plea of petitioners in view of provision of Order XVII, Rule 1(1)(3) (Lahore High Court Amendment). Conduct of cross-examination is an "act necessary to the further progress of the suit used in Rule 3 of Order XVII but the same provision could not have been attracted because perusal of order dated 10.07.2010 suggests that on the said date, adjournment was not made at the instance of petitioners as order is totally silent in this regard. Though it finds mentioned that Advocates are not appearing due to strike but nevertheless said order is nowhere suggestive that adjournment was sought only at the instance of petitioners. Order XVII, Rule 1(1)(3) (Lahore High Court Amendment) suggests that when sufficient cause is not shown for adjournment under sub-rule (1), the Court shall proceed with the suit forthwith. Distinction and demarcation between two provisos under examination is that in the later mentioned provision C.LR. of law, the adjournment is not required to be granted at the instance of defaulting party while it is legal compulsion that in order to proceed under Order. XVII, Rule 3 of The Code of Civil Procedure, 1908, adjournment should have been allowed at the instance of party in default. Question of sufficient cause is relevant within the meaning of Order XVII, Rule 1(1)(3) (Lahore High Court Amendment). Preoccupation of petitioners before this Court in different cases though asserted but has not been substantiated at the instance of petitioner, which fact could have been established by producing the cause list which fact was also highlighted by the learned Trial Court in the order dated 23.10.2010. Even the petitioners did not append the said cause list alongwith revision petition in order to suggest "sufficient cause" which prevented the counsel for the petitioners to appear before the learned Trial Court when the order regarding closure of right of cross-examination was made. The learned Trial Court while dismissing the application for review of order right reached to the conclusion to which no exception can be taken. It is also worth mentioning that said order has not been assailed before this Court. Though present petitioners preferred an appeal but strangely though vires of order dated 23.10.2010 dismissing the application for review was not assailed and only order dated 20.9.2010 was impugned, and appeal was dismissed as the same admittedly was barred by time. No application either under Section 5 or Section 14 of The Limitation Act, was made in order to condone the delay.
5. Revisional jurisdiction can be exercised in case of non- assumption, illegal assumption of exercise of jurisdiction illegally or with material irregularity. In view of discussion made in preceding paragraphs, learned counsel for the petitioners failed to point out any jurisdictional defect in the orders impugned.
6. Substitution of opinion is not permissible in revisional jurisdiction.
7. Epitome of above discussion is that revision petition being devoid of force is hereby dismissed.
Civil revision .