' MUHAMMAD MAQBOOL BAJWA, J.---Shah Muhammad, respondent No,1 instituted suit for declaration and perpetual injunction by way of consequential relief against the present petitioners and others in which after casting issues lis was fixed for evidence of respondent No,1 being plaintiff.
Partial evidence of respondent No,1 was recorded while adjournments were claimed at his instance for production of remaining evidence for one or the other reason. On 28-5-2012 the witnesses of respondent No,1 were in attendance but the counsel for the petitioners did not cross-examine the witnesses and there was no option with the learned trial Court but to close the right of the, petitioners to cross-examine the said witnesses. The order was assailed before the learned Additional District Judge, but the revision petition was declined vide order dated 3-7-2012.
2. The learned counsel for the petitioners assailed the vires of orders of both the courts below contending that provisions of Order XVII Rule 3 of The Code of Civil Procedure, 1908 were not attracted to the facts of the case as the date i,e, 28-5-2012 was not granted at the request of the petitioners and adjournment prior to the date was claimed by respondent No,1 himself. Submitted that in the attending circumstances, both the orders are legally not sustainable. It was further pointed out that the application under Order VII, Rule 11 of The Code of Civil Procedure, 1908 was made at the instance of petitioners for rejection of plaint on the day but instead of deciding the said application first of all, the learned trial Court closed the right of the petitioners to cross- examine the witnesses of respondent No, 1.
3. On the other hand, the learned counsel for respondent No,1 while drawing the attention of this court to the different interim orders maintained that on many dates, witnesses of respondent No,1 were present but were not cross-examined with an intent to delay the conclusion of trial and to put respondent No,1 and his witnesses in inconvenience. Submitted that intentional refusal on the part of petitioners to cross-examine the witnesses justify the orders assailed.
4. The petitioners while invoking the constitutional jurisdiction of this court has also questioned the wires of order of revisional court dated 3-7-2012.
5. First question for consideration is to determine the maintainability of writ petition as laid and framed as order by the learned revisional court has been called in question while exercising constitutional jurisdiction of this court which admittedly is akin to the revisional jurisdiction of this court.
6. Similar proposition was moot point before this court in "Hafiz MUHAMMAD QASIM v. Mst. SOORAT BIBI and others (2000 YLR 2606), in which it has been held at page 2607 and 2608 as follow:-- "The relief which was claimed by the respondents on the basis of averments in the plaint are manifold in nature, therefore, it could not be successfully maintained that a challenge to the decree forming subject-matter of the suit alone is the subject-matter of application under section 12(2), C. P. C. In any case, no prejudice has been caused to the petitioner for the matter would be decided after the trial of the suit. It has been held in Ghulam Hussain and another v. Malik Shahbaz and another 1985 SCMR 1925 that High Court would decline to interfere in its constitutional jurisdiction in matter arising out of civil suit wherein plaint had not been rejected. Additionally order passed in revisional jurisdiction cannot be successfully assailed in constitutional jurisdiction of this Court. If any authority is needed reference may be made to Manzoor Hussain Shah and 15 others v. Allah Bachaya Khan and 5 others 1986 CLC 1813. Needless to add that the revisional jurisdiction is almost akin to the constitutional jurisdiction of this Court and if this Court starts looking into the revisional order it would tantamount to entertaining a second revision against the original order, which is specifically prohibited under the law. It is no doubt true that in certain cases where the orders passed by the revisional Court are found to be without jurisdiction and nullity in the eye of law or some patent illegality is pointed out on the record, this Court may exercise its constitutional jurisdiction but normally this Court has loath to exercise such a jurisdiction". (underlining is mine).
7. In view of the settled proposition of law there can be no cavil with the proposition that normally this court while exercising constitutional jurisdiction will not examine the legality and validity of the order recorded by the revisional court barring the orders found to be without jurisdiction, nullity in the eye of law or some patent illegality is pointed out.
8. In order to determine whether the order of learned revisional court falls within the exception, the contention raised by learned counsel for the parties as well as wisdom, intention and object of the different provisions of Order XVII of The Code of Civil Procedure, 1908 is to be examined.
9. The learned counsel for the petitioners while making reference to the order dated 15-5-2012 according to which on the said date of hearing, the witnesses of respondent No,1 were not in attendance and adjournment was not granted at the request of present petitioners adjourning the lis for 28-5-2012, contended that provisions of Order XVII, Rule 3 of The C.P.C. Were not attracted to the facts of the case as held in "Sheikh KHURSHID MEHBOOB ALAM v. Mirza HA SHIM BAIG and another" (2012 SCM R 361). Argument canvassed by the learned counsel for the petitioners regarding non-applicability of the provisions of Order XVII Rule 3 of The Code of Civil Procedure, 1908 as such cannot be questioned being settled proposition of law.
10. However, the matter does not end here. In Rule 1, of Order XVII amendment was made by the Lahore High Court adding the following as Sub-Rule 3 to Rule 1:-- "(3) Where sufficient cause is not shown for the grant of an adjournment under Sub-Rule 1, the court shall proceed with the suit forthwith".
' Yardstick for applicability of the Sub-Rule 3, inserted by the amendment made by the Lahore High Court and Order XVII, Rule 3 of The Code of Civil Procedure, 1908 is entirely different. As observed earlier, latter mentioned provision can be applied only if the party to whom time has been allowed to perform any other act necessary to the further progress of the suit makes default to do the said act but nevertheless same is not the condition requisite for the applicability of the provisions of Order XVII, Rule 1(3) of The Code of Civil Procedure, 1908 (Lahore High Court Amendment) referred to.
11. No doubt evidence of respondent No,1 being plaintiff was not present on many dates of hearing but perusal of the interim orders sheet suggest that on 8th of March, 2012, three witnesses of respondent No,1 were in attendance, adjournment was claimed at the instance of petitioners through the clerk of counsel showing his inability to cross-examine the witnesses, which was accordingly granted for 20-3-2012 when witnesses were present. However, it was adjourned but reason for adjournment was not disclosed. On 9th of April, 2012 again three witnesses were in attendance. Local commission was appointed by the learned trial Court for recording the evidence but once again request was made at the instance of learned counsel for the petitioners in a similar manner resulting in adjournment for 26-4-2012. On the adjourned date, again witnesses were in attendance and the learned counsel for the petitioners again made request for adjournment, which was allowed subject to payment of diyat money of the witnesses to the tune of Rs,1000 and the witnesses were bound down for the next date of hearing i,e, 7th of May, 2012, on which date again witnesses present on the last dates of hearing showed their appearance but strangely enough neither C anyone appeared on behalf of the petitioners nor paid the diyat money of the witnesses. The said order further reveals that while writing the order, the counsel for the petitioners put his appearance and again requested for an adjournment. Partial expenses were paid to the witnesses and it was adjourned for 15-5-2012 at 10.00 a.m. With warning to close the right of the petitioners to cross-examine the witnesses. However, admittedly on 15-5-2012 witnesses were not in attendance resulting in adjournment of lis for 28-5-2012. File was taken up at the time fixed in the previous order. Counsel for the petitioners was available who refused to cross-examine the witnesses and that too without any justified reasons. The trial Court noted down conduct of counsel for the petitioners adding that it is a direction case and three old witnesses used to appear in the court. Case was fixed at 12.00 noon requiring the counsel for the petitioners to cross-examine the witnesses. Again matter was taken up at 12.00 noon. Though the counsel for the petitioners was available but the order impugned clearly suggests that counsel for the petitioners neither cross- examined the witnesses nor paid the costs/expenses of the witnesses. The learned trial Court in its detailed order incorporated the conduct of the counsel for the petitioners and closed their right to cross-examine the witnesses. It is not disputed that at the said time application under Order VII, Rule 11 of The Code of Civil Procedure, 1908 was made for rejection of plaint and while delivering the copy to the adversary, it was adjourned for submission of reply to the said application.
12. Neither in the writ petition nor during the course of arguments any reason was put forward at the instance of petitioners to justify repeated omission and refusal on the part of the counsel for the petitioners to cross-examine the witnesses. In the attending circumstances and in the absence of any justified reasons advanced at the instance of petitioners, the provisions of Order XVII Rule 1(3) of The Code of Civil Procedure, 1908 (Lahore High Court Amendment) was fully attracted to the facts of the case as the petitioners by their words and conduct made it impossible for the learned trial Court to proceed with the trial of the suit.
13. Question of applicability of provisions of Order XVII Rule 1(3) of The Code of Civil Procedure, 1908 (Lahore High Court Amendment) was dealt with by the Hon'ble Supreme Court of Pakistan in "PIRZADA AMIR HUSSAIN AND OTHERS v. MRS. SHAMIM SHAH NAWAZ AND OTHERS 1987 SCM R 249 and it was held It page 535 as follow:-- "Rule 3 of Order XVII, was held to be inapplicable on a purely technical ground, namely, that the adjournment of the suit on 15-2-1978 to 8-4-1978 was not on the asking of the petitioners.
Although keeping in view the language used in the order dated 15-2-1978 it could be argued that Order XVII Rule 3 was also attracted in this case, we do not consider it necessary to examine that aspect any further because in our view in so far as the facts regarding adjournments are concerned sub-Rule (3) of Rule 1, of Order XVII as held by the High Court, was also fully attracted in this case. And if that rule required the trial Court to proceed with the suit forthwith when sufficient cause is not shown for the grant of adjournment sought by the petitioners then the approach of the High Court in this regard did not suffer from any infirmity, legal or otherwise."
14. In the similar circumstances, the learned Division Bench of this court while dealing with the proposition endorsed the order of the learned trial Court but under Order XVII Rule 1(3) of The Code of Civil Procedure, 1908 (Lahore High Court Amendment) in the case of "GHULAM QADIR alias QADIR BAKHSH v. Haji MUHAMMAD SULEMAN and 6 others" (2002 CLC 1111). In the circumstances the order of learned revisional court dismissing the revision petition cannot be said to be without jurisdiction, nullity in the eye of law. No patent or even latent illegality or irregularity can be pointed out not only in the order of learned revisional court but also in the order handed down by the learned trial Court.
15. Pursuant to above discussion, exercise of constitutional jurisdiction in the circumstances is not warranted on legal as well as factual premises. Argument canvassed at the instance of petitioners regarding submission of application under Order VII, Rule 11 of The Code of Civil Procedure, 1908, its non-disposal first of all would not advance the case of the petitioners as one can clearly reache to the conclusion that said application was filed with an intent to avoid the consequences to be occurred due to refusal on the part of the petitioners to cross-examine the witnesses.
' In the case of "GHULAM QADIR alias QADIR BAKHSH (Supra) the learned Division Bench of this court while dealing with the similar proposition justified the dismissal of the application under Order XIV, Rule 5 of The Code of Civil Procedure, 1908 formulating opinion that . The said application was filed with the object to delay final disposal of the case and to avoid production of evidence. Facts of the case are similar and as such rule of law enunciated can be conveniently applied to the facts of present case.
16. Pursuant to above, order regarding closure of right of petitioners to cross-examine the witnesses shall be deemed to have been made under Order XVII, Rule 1(3) of The Code of Civil Procedure, 1908 (Lahore High Court Amendment).
17. Jurisdiction under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 is discretionary and equitable and its exercise is governed by the maxim "He who seeks equity must come with clean hands" as held in "RAJA BINYAMIN v. DISTRICT AND SESSIONS JUDGE, LAHORE WITH POWERS OF ELECTION TRIBUNAL SHEIKHUPURA and 7 others" 2003 YLR 1217, "ASIM BUTT v. ADDITIONAL DISTRICT AND SESSIONS JUDGE FEROZEWALA and 11 others"2003 M LD 1168.
18. Conduct of the petitioners as discussed clearly suggests that he has approached this court with unclean hands and as such is not entitled to any indulgence from this court.
19. Viewed from whichever angle, the writ petition is liable to be dismissed not only on legal but also on factual premises resulting in its dismissal.
20. Costs shall follow the event.