' NASIR SAEED SHEIKH, J.---A suit for possession through partition of the subject property was filed by the respondents against the present petitioner and others on 6-11-2003. This suit was pending before a learned Civil Judge Kahuta. Written statement was submitted and the learned Civil Judge framed the following issues on 3-7-2004:- ' ISSUES
(1) Whether Khasra No,640 measuring 2 Kanals 10 Marlas is common wherein share of plaintiffs and defendants Nos.2 to 6 is 5/6 measuring 2 Kanals 1 Marla? OPP
(2) Whether plaintiffs are entitled for decree of possession through partition? OPP
(3) Whether property is agricultural hence this Court has no jurisdiction to entertain the matter?
OPD
(4) Whether suit of plaintiff is not proceedable due to mis-joinder and non joinder of necessary and proper parties? OPD
(5) Whether plaintiffs suit is false hence defendant No,1 is entitled to recover compensatory cost under section 35-A C.P.C.? OPD
(6) Relief.
2. The evidence of the respondents/plaintiffs was called by the learned trial court for 8-10-2004 on which date the evidence was not available and the next date of hearing was fixed for 13-12-2004.
On this last date the learned Presiding Officer was on leave and the file was taken up on 21-2,2005 and the case was adjourned to 18-4-2005. On 18-4-2005 last, opportunity was granted to the respondents to produce their evidence on 9-5-2005 on which date the learned. Civil Judge applied the principles of Order XVII Rule 3 of C.P.C. And dismissed the suit for lack of evidence. This dismissal of the suit through the judgment dated 9-5-2005 was assailed by the respondents through an appeal preferred which appeal came up for hearing before a learned Additional District Judge Rawalpindi and was accepted vide judgment and decree dated 6-10-2005. The learned first appellate court set aside the impugned judgment dated 9-5-2005 passed by the learned Civil Judge of closing the right to produce the evidence of the respondents and directed that one opportunity be granted to the respondents to produce the evidence.
3. This judgment dated 6-10-2005 passed by the learned Additional District Judge Rawalpindi has been assailed through the instant civil revision.
4. The learned counsel for the petitioner relies upon the judgment reported as Abdul Shakoor and others v. Province of The Punjab and 4 others (2005 SCM R 1673) to argue that when an opportunity to produce the evidence was granted to a litigant at his or her request the provisions of Order XVII Rule 3 of C.P.C. Are applicable and the right to produce the evidence has to be closed. The learned counsel for the petitioner thus has prayed that the impugned judgment passed by the learned first appellate court is not sustainable in the eye of law.
5. The learned counsel for the respondents has opposed the maintainability of the instant civil revision on the ground that discretion has been exercised by the learned first appellate court and that the revisional jurisdiction in view of the peculiar circumstances of the instant case allowing one opportunity to the respondents/plaintiffs to produce their evidence does not suffer from any such illegality or material irregularity so as to call for interference in the impugned judgment passed by the learned first appellate court.
6. I have considered the arguments of the learned counsel for the parties.
7. The case-law relied upon by the learned counsel for the petitioner Abdul Shakoor and others v.
Province of The Punjab and 4 others (2005 SCM R 1673) is distinguishable on its own facts. The two courts below in the reported judgment had exercised discretion against the petitioners/appellants who were allowed 14 opportunities to produce the evidence and upon their failure the courts applied the principles of Order XVII Rule 3 of C.P.C. Against them and their suit was dismissed. In the instant case a suit for partition of joint property was filed by the respondents and the valuable rights regarding the joint ownership is involved. Only three opportunities were granted to the respondents to produce their evidence and the learned first appellate court exercised its discretion properly in favour of the respondents through the impugned judgment dated 6-10-2005 to allow one opportunity to the respondents to produce their evidence. This exercise of discretion by the learned appellate court in favour of the respondents has not been shown to be suffering form any such illegality so as to call for interference by this Court.
8. The concept of the exercise of revisional jurisdiction under section 115 of C.P.C. Has been interpreted by the honourable Supreme Court of Pakistan in the judgment reported as Qazi Shamsur Rehman and another v. Mst. Chaman Dasta and others (2004 SCM R 1798) to the effect that this Court can exercise restraint in interfering even in an order irregularly passed by the subordinate courts provided no material injustice has been the outcome of the impugned order.
The discretionary power has been exercised by the learned first appellate Court in favour of the respondents in allowing an opportunity to the respondents to produce the evidence on a suit involving the partition rights of the parties. Substantial justice has been done by the learned first appellate court and in this context I am strengthened by the judgment pronounced by the honourable Supreme Court of Pakistan reported as Suleman v. Mst. Zeenat Jan and 2 others (PLD 2003 SC 362) wherein at page 367 it has been laid down that the revisional jurisdiction of the High Court is discretionary in nature and should not be exercised if substantial justice has been done between the parties. I am not persuaded to interfere in the C impugned judgment passed by the learned first appellate court dated 6-10-2005 allowing the respondents/plaintiffs an opportunity to produce their evidence.
9. The instant civil revision being devoid of any substance is dismissed with no orders as to costs.
10. The learned counsel for the parties state that now the suit is to be tried by the learned Civil Judge Kallar Syedan therefore it is directed to be fixed before the learned Senior Civil Judge, Kallar Syedan on 16-12-2013 on the date on which the parties are to appear and the learned Senior Civil Judge shall then fix the case for production of evidence by the respondents by allowing them one opportunity to produce their evidence.