' This civil revision under Section 115 of the Code of Civil Procedure 1908 is directed against the order dated 16.9.2013 passed by learned Civil Judge Sialkot whereby their right to produce evidence was struck off. It also assails the judgment dated 25.6.2014 passed by learned District Judge Sialkot whereby petitioners' appeal against above said order was dismissed.
2. Arguments heard. Record perused.
3. Perusal of record transpires that Sh. Khalid Mahmood petitioners lodged a suit for declaration along with permanent and mandatory injunction as consequential relief against the respondents on 08.5.2010. The respondents resisted the said suit by filing contesting written statement. In view of the divergent pleadings of the parties learned trial Court framed the issued on 31.10.2011. Thereafter as many as ten adjournments were provided to the petitioners for producing evidence. Out of the said ten adjournments on four occasions hearing was adjourned due to strike of the lawyers and leave of learned Presiding Officer. Six adjournments were obtained by the petitioners for non- producing the evidence. Lastly on 25.6.2013 learned trial Court granted adjournment to the petitioners on their request in the following manner: "The evidence of the plaintiffs is not present Request for adjournment has been made. Already many opportunities were granted but the plaintiffs failed to produce their evidence. However, in the interest of justice, absolute last opportunity is granted with costs of Rs. 500/-. Adjourned for evidence of plaintiff for 16.09.2013."
4. Even on the fixed date i.e. 16.9.2013 petitioners again failed to produce the evidence. Consequently learned trial Court pass .1 the impugned order in the following manner:- "16.09.2013 2.10 p.m: Present: Ld: counsel for the parties. Evidence is not present.
It is pertinent to mention that the issues were framed on 31.10.2011 whereas despite availing numerous opportunities with costs, the plaintiffs failed to examine even a single witness. On 25.06.2013. The plaintiffs were granted absolutely last opportunity with costs of Rs.
500. Today i.e. 16.09.2013, the plaintiffs were given opportunity till closing hours to produce their evidence but in vain which shows that they have no interest to pursue the matter. Further adjournment without any cause, would defeat the very object of justice rather tantamount to put the defendants in mental agony. I therefore, by invoking provision of Order XVII Rule 03 of CPC struck off the right of evidence for production of evidence.
' Vide separate detailed judgment in English of even date; the instant suit is dismissed for want of evidence. Decree sheet be drawn up. Parties shall bear their own costs. Be consigned to the record room after its due completion."
5. Scrutiny of record transpires that despite availing as many as six opportunities the petitioners have miserably failed to produce evidence. In the case of Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (PLD 1971 SC 434) the provisions of Order XVII Rule 3 of Code of Civil Procedure, 1908 came under consideration before the Hon'ble Supreme. Court of Pakistan and following principle was enunciated: "It will be seen that this rule applies to a case where time has been granted to a party at his instance to produce evidence or to cause the attendance of witness or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted."
6. In this case Sh. Khalid Mehmood Petitioner No. 1 while agitating against judgment and decree dated 16.9.2013 in his grounds of appeal before the learned Additional District Judge Sialkot categorically alleged that he was pursuing the case on his behalf as well as on behalf of other petitioners and that he being a heart patient had fallen seriously ill on the fixed date of hearing i.e. 16.9.2013 and learned trial Court was so informed by his counsel with a request for adjournment but the learned trial Court did not accede to the request and dismissed the suit under Order XVII Rule 3 of Code of Civil Procedure 1908. Petitioners' contention thit he had fallen seriously ill on 16.9.2013 is not supported by any medical certificate. Admittedly neither Sh. Khalid Mehmood Petitioner No. 1 nor his witnesses were present before the learned trial Court on the fixed date i.e. 16.9.2013. Learned Appellate Court in the impugned judgment dated 25.6.2014 scanned the record produced by the petitioners along with the appeal and rightly observed that the same fails to substantiate the petitioner's plea of ailment on the relevant date. It is therefore a case of willful default. In the attending circumstances the learned trial Court had no option but to exercise his jurisdiction in terms of Order XVII Rule 3 of Code of Civil Procedure 1908. Reliance be made upon Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others (PLD 2003 Supreme Court 180).
7. Learned counsel for the petitioners has vehemently argued that the learned trial Court was obliged to furnish an opportunity to the petitioner at least to record his own statement. Perusal of the record transpires that neither the petitioner was present on the fixed date before the Court nor any such request was made by the learned counsel for the petitioner to the learned trial Court. No application was lodged by the learned counsel for the petitioner before the learned trial Court with a request for recording the statement of the petitioner. Even no such request was made by the petitioner in his grounds of appeal before the learned Appellate Court. In the above noted circumstances it will be advantageous to seek guidance from a dictum laid down by the Hon'ble Supreme Court of Pakistan reported as Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others (2014 SCM R 637). The relevant extract of the above citation reads below: "4. Notwithstanding our refraining to interfere in the matter on account of the above, we are of the candid view that provisions of Order XVII Rule 3, CPC are penal in nature and as per the settled law such provisions should be strictly construed and applied, therefore once the case of a delinquent litigant squarely falls within the purview and mischief of the law (ibid) then neither any concession should be shown to such litigant nor a lenient view favouring him should be resorted to; this should not even be permissibly done on the touchstone of exercise of discretionary power of the Court and/or on the approach that technicalities of procedure should not be allowed to impede the interest of justice, and/or that the litigants should not be knocked out on technical grounds, and that adversarial lis should be settled on merits If such approach is liberally followed and resorted to there shall be no discipline in the adjudication of the civil litigation and the delinquent whose case though is squarely hit and covered by the penal provisions of Order XVII, Rule 3, C.P.C. Would be given a chance to his advantage and to the disadvantage of his opposing side. This is not the spirit of the law at all. It may not be out of place to mention here that to apply and to adhere to law is not a mere technicality, rather it is duty cast upon the Court as per Article 4 of the Constitution of Islamic Republic of Pakistan, 1.973 to do so. Thus where Order XVII, Rule 3, C.P.C. Is duly attracted, the Court has no option except to take action in accord therewith.
5. In the above context, it may be held that in every case where the action against the delinquent party is imperative and his evidence has to be closed because the case squarely and eminently falls within the mischief of Order XVII, Rule 3, C.P.C., the Court while closing the evidence is not in any manner obliged to adjourn the case and require or ask the litigant to appear and examine himself as a witness on a subsequent date. Obviously if the party is present in the Court and desires to appear as a witness the Court should not decline his request, rather it shall be appropriate that where the party is present, the Court while applying Order XVII, Rule 3, CPC and closing the evidence on a given date should itself ask the party to avail the chance of appearing as his own witness, and should also record such fact in its order (order sheet) that a chance was given to the litigant which has not been availed. However, if this fact is not so recorded by the Court though the party was present and sought its examination such party should initially move an application to the Court for examination if the case has not yet been decided. But where the case is finally decided a ground should be specifically set in the memo. Of appeal/revision as the case may be about the presence of the party and asking for the examination, which should be supported by an affidavit of the counsel for the said party to the above effect."
8. Besides it is evident on the record that on 25.6.2013 petitioners' evidence was not available and the time was granted on their request for the sake of justice with the caution of absolute last opportunity subject to the payment of the cost. Despite above noted caution petitioners miserably failed to produce evidence on the fixed date i.e. 16.9.2013 therefore learned trial Court was justified in applying the penal provision of Order XVII Rule 3 of Code of Civil Procedure 1908 through impugned order dated 16.9.2013 which is rightly maintained by the learned Appellate Court. I do not find any legal infirmity, material irregularity or jurisdictional error in the impugned order and judgment passed by learned Courts below.
Petitioners have no case to invoke the revisional jurisdiction of this Court.
9. Case law cited by learned counsel for the petitioners is distinguishable on facts and not helpful to the petitioner.s.
10. For the above reasons, this revision petition having no merit is dismissed in liming.