' SHAHID MUBEEN, J.---Through instant civil revision under section 115, C.P.C., the petitioners have called into question the legality and validity of impugned judgment dated 26.09.2009 (copy of decree not appended) passed by the learned Civil Judge, Pind Dadan Khan whereby the application of the petitioners for setting aside the ex parte judgment and decree dated 22.07.2005 in Civil Suit No,180 instituted on 22.10.2003 titled "Allah Ditta and others v. Fateh Muhamamd and others" was dismissed and impugned judgment and decree dated 24.06.2010 passed by learned Additional District Judge, Pind Dadan Khan whereby appeal against the judgment of learned Civil Judge, Pind Dadan Khan filed by the petitioners was also dismissed.
2. Vide order dated 11.12.2015, the respondents were proceeded against ex parte.
3. Briefly stated the facts of the case are that petitioner (Fateh Muhammad) filed an application under Section 12(2), C.P.C. For setting aside the judgment and decree in Civil Suit No,180 instituted on 22.07.2005 titled "Allah Ditta and others v. Fateh Muhammad and others" alleging that respondents have obtained the said decree through fraud and mis-representation. The respondents contested the said application through written reply. Out of the divergent pleadings of the parties following issues were framed:-- i). Whether the application does not lie legally? OPR ii). Whether the petitioner has not filed this application according to law? OPR iii). Whether the petitioners know about the suit and they should have filed appeal against the decree? OPR iv). Whether the petitioners have not come to the court with clean hands? OPR v).
Whether the application has been filed just to delay and deprive the respondents from their legal share? OPR vi). Whether the petitioners have filed this petition just to harass the respondents and they are entitled to special costs? OPR vii). Whether the petitioners have no locus standi and application is based on mala fide? OPR viii). Whether the ex parte decree dated 22.07.2005 titled Allah Ditta and others v. Fateh Muhammad and others is liable to be set aside? OPP ix). Relief ' The application of the petitioners was dismissed and the right to produce evidence of the petitioners was closed by learned Civil Judge, Pind Dadan Khan vide impugned judgment dated 26.09.2009. The petitioners being aggrieved from the said judgment filed an appeal which was also dismissed by learned Additional District Judge, Pind Dadan Khan vide impugned judgment and decree dated 26.06.2010. Hence, this civil revision.
4. It is contended by learned counsel for the petitioners that neither the petitioners appeared in the Court nor their witnesses, therefore, the suit can be dismissed in default only and their right to produce evidence could not have been closed under Rule 3 Order XVII, C.P.C. As said Rule presupposes the presence of party before the court. He relied upon case law reported as "Ahlian Moon Payeen through representative and others v. Ghulam Muhammad and 7 others" (2010 CLC 902). He further contends that the learned trial court has wrongly applied provision of Order XVII Rule 3, C.P.C. While closing the evidence of the petitioners as on 14.04.2009 the evidence of the petitioners was present and on the said date the case adjourned as the counsel of respondents was not in attendance before the court.
5. I have heard the learned counsel for the petitioners and have gone through the record with his able assistance.
6. The first contention of learned counsel for the petitioners that as they did not appear on 26.09.2009, therefore, the court should have proceeded against ex parte under Order IX of C.P.C.
Instead of applying provision of Order XVII Rule 3, C.P.C. By closing their evidence. This contention of learned counsel for the petitioners has been completely answered in case law titled as "Executive Engineer, Peshawar v. Messrs Tour Muhammad and Sons and 4 others" (1983 SCMR 619). The relevant portion of the judgment is reproduced herein below:- "This Rule applies where a party who is granted time to perform some act, not only fails to do so but is also absent on the date to which the hearing is adjourned. It is immaterial whether the adjournment was granted at the instance of the party or for other reasons. Where a defendant does not appear at an adjourned hearing, this rule applies irrespective of whether he appeared at the first hearing or not and the Court has to exercise its discretion its hands are not tied by the previous ex parte order. For these reasons we do not consider this petition has any merit and is, therefore dismissed."
' This view of Hon'ble Supreme Court of Pakistan has been followed by this Court in case law titled as "Sajida Mussarrat v. Muhammad Shafi and 2 others" (1993 CLC 1514), in the following manner:-- "The judgment of the Supreme Court was binding and shall prevail. It covered the case of a double default for the application of Order XVII, Rule 3 of Civil Procedure Code. My view in Division Bench case was that Rule 3, C.P.C. Did not cover the case of double default. Be that as it may, plaintiff was allowed sufficient time and opportunity in adjournments but she failed to avail and utilize the time properly. Upon this view to the matter, it shall not be equitable to interfere and allow further indulgence to the defaulter plaintiff. Civil Revision is dismissed in limine."
7. However, it is to be remembered that previously learned Division Bench in case titled "Mst. Arifa Amjad and 2 others v. Abbas Tayyab Dar and another" (1990 CLC 1743) had taken the view that application of Order XVII Rule 3 of Civil Procedure Code pre-supposed presence of the party before the Court.
8. The reliance of the learned counsel for the petitioners on case law reported as "Ahlian Moori Payeen through representative and others v. Ghulam Muhammad and 7 others" (2010 CLC 902) is of no help to him as the said judgment has been passed in ignorance of law laid down in case law reported as "Executive Engineer Peshawar v. Messrs Tour Muhammad and Sons and 4 others" (1983 SCMR 619), hence, it could be said to be judgment per incurium.
9. Order sheet reflects that issues were framed on 18.09.2006 and the case was adjourned for recording of evidence of the petitioners for 18.12.2006. On various dates including that of 18.12.2006, 29.01.2007, 09.03.2007, 16.05.2007, 18.07.2007, 06.09.2009, the case was adjourned on the request of the petitioners. Order sheet further reflects that from 08.10.2007 to 14.03.2008, the case was adjourned for some other purposes. However, again on 21.04.2007, case was adjourned on the request of the petitioners with final last opportunity (emphasis supplied) for recording of evidence for 30.05.2008. On 30.05.2008 the case was again adjourned on the request of the petitioners for 29.07.2008. It also reflects from order sheet including that of 29.07.2008, the evidence was not produced and the case was adjourned for 30.10.2008. On 30.10.2008, the evidence of the petitioner was not present and the case was adjourned for recording of their evidence with final last opportunity for 15.12.2008. On 15.12.2008, the case was again adjourned on the request of the petitioners by giving them final last opportunity for 28.01.2009. On 28.01.2009 again evidence was not present and the final last opportunity was granted for recording of evidence of the petitioners and the case was adjourned to 26.02.2009. On 26.02.2009 once again evidence of the petitioners was not present and final last opportunity was granted for production of their evidence and the case was adjourned to 14.04.2009. On 14.04.2009, the evidence of the petitioners was present but the case was adjourned as counsel of respondents was not in attendance and the case was adjourned to 07.05.2009. On 07.05.2009, learned trial court was on leave and the case was adjourned to 09.07.2009. On 09.07.2009, the evidence of the petitioners was not in attendance and on their request the case was adjourned to 26.09.2009 for recording of their evidence. On 26.09.2009 neither the petitioners nor their evidence was in attendance, therefore, the learned trial court passed the impugned order dated 26.09.2009 whereby their application under Section 12(2), C.P.C. Was dismissed.
10. Now it is to be seen that whether the learned trial court has correctly applied the provision of Rule 3 Order XVII or not? For ease of reference, rule 3 of Order XVII of C.P.C. Is reproduced herein below:- "3. Court may proceed notwithstanding either party fails to produce evidence, etc. ---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."
11. As on previous date i,e.
09.07.2009, the adjournment was granted at the request of the petitioners for production of their evidence, therefore, the learned trial court has rightly invoked the provision of Order XVII Rule 3, C.P.C. By closing their evidence. Reference may be made to latest celebrated judgment of the Hon'ble Supreme Court of A Pakistan reported in case law titled as "Rana Tanveer Khan v. Naseer- ud-Din and others" (2015 SCM R 1401) . Relevant portions of the judgment are reproduced herein below:-- "2. Heard. It has been argued that only within a period of 1 month and 26 days, the evidence of the appellant was closed; besides, the appellant should have been asked by the court to at least have his statement recorded; it is further argued that no direction was issued to the appellant to produce his evidence and thus the case is covered by the judgment of this Court (supra). Before proceeding further, it may be pertinent to mention here that the case Muhammad Arshad (supra mentioned in the leave granting order) by itself is only a leave granting order and is not the enunciation of law by this Court. Be that as it may, once the case is fixed by the Court for recording the evidence of the party, it is the direction of the court to do the needful, and the party has the obligation to adduce evidence without there being any fresh direction by the court, however, where the party makes a request for adjourning the matter to a further date(s) for the purposes of adducing evidence and if it fails to do so, for such date(s), the provisions of Order XVII, Rule 3, C.P.C.
Can attract, especially in the circumstances when adequate opportunities on the request of the party has been availed and caution is also issued on one of such a date(s), as being the last opportunity(ies). In the present case we have seen that the appellant was cautioned on two occasions, which means that the appellant was put to notice that if he fails to adduce evidence, action shall be taken.
' In the present case, as mentioned above, it is clear from the record that the appellant had availed four opportunities to produce his evidence and in two of such orders (the last in the chain) he was cautioned that such opportunity granted to him at his request shall be the last one, but still on the day when his evidence was closed in terms of Order XVII, Rule 3, C. P. C. No reasonable ground was propounded for the purposes of failure to adduce the evidence and justification for further opportunity, therefore, notwithstanding that these opportunities granted to the appellant were only in a span of about 1 month and 26 days, yet his case squarely fell within the mischief of the provisions ibid and his evidence was rightly closed by the trial court."
' Further reference in this regard may also be made to PLD 1990 SC 1192, PLD 1991 SC 1109.
12. From bare perusal of order sheet, it is manifestly clear that the petitioners had made it impossible by not producing of their evidence for the learned trial court to proceed further with the matter, hence, the learned trial court has rightly invoked the provision of Rule 3, Order XVII, C.P.C.
13.. The learned counsel for the petitioners has failed to highlight or point out any illegality and jurisdictional defect or any infirmity and perversity in the impugned judgment of the learned trial court as well as in the impugned judgment and decree of the learned appellate court.
14. Sequel to the above, this civil revision being devoid of any force D is dismissed with no order as to cost.