This revision petition is of the plaintif f and arises from a suit for possession of the disputed property through pre- emption. This suit was contested by the respondent. On pleadings issues were framed and parties were directed to adduce evidence in support of their respective claims. The petitioner/pre-emptor despite availing numerous opportunities could not produce evidence and, thus, the learned Trial Court closed his right to produce evidence.
The suit was dismissed for want of evide nce vide decree dated 12.02.2014. The petitioner assailed the decree of the learned Trial Court through an appeal before the learned Additional District Judge, Phalia. It was pleaded before the learned first Appellate Court that another case having the same title i.e. Arshad vs. Nawaz was also pending on 15.01.2014, which was adjou rned to 13.02.2014 and, therefore, the petitioner misconstrued that his suit, from which instant revision petition arises, also adjourned to 13.02.2014; and, that due to said reason neither petitioner nor his counsel could appear before the learned Trial Court on 12.02.2014 the date fixed in his suit and on the said date his right to produce evidence was closed. This argument did not prevail upon the learned first Appellate Court as the same was found contrary to the record. The appeal was, therefore, dismissed vide decree dated 09.07.2014.
2. The petitioner through this petition seeks revision of the afore noted decrees of the learned Courts below . Since this petition was not filed within prescribed period of 90 days, the petitioner has filed an application (i.e. C.M. No.02 of 2014) for condonation of delay . The petitioner has also filed an application (i.e. C.M.No.1 of 2014) under section 151 CPC for grant of interim relief.
3. The prime question for consideration in this petition is whether the learned Trial Court had rightly exercised its jurisdiction while closing right of the petitioner to produce evidence. The answer to this question may be given by examining the proceedings of the learned Trial Court. Summary of the proceedings of the learned Trial Court has been given by the learned first Appellate Court in paragraph 4 of its judgment dated 09.07.2014. The facts recorded in paragraph 4 are in consonance with order sheet of the learned Trial Court which is available on this file as Annex-D. Thus, in order to avoid any repetition, paragraph 4 of the appellate judgment dated 09.07.2014 is reproduced below: " The case was adjourned for recording of evidence on 11.1.2012 when evidence was not available, then the case was adjourned to 10.3.2012 when an application was filed and subsequent dates 7.4.2012, 26.4.2012, 23.5.2012 fixed for reply and order on the application. Then again case was fixed for recording of evidence. On 10.7.2012 evidence was not available, then the case adjourned to 12.8.2012. On the said date position was same, then the case was adjourned for 7.11.2012 when the witnesses were present, however learned counsel was not ready for cross examination when case was adjourned for 8.12.2012. On the said date evidence was available. The case was adjourned for 19.1.2013 on the said date evidence was not available and again case was adjourned to 13.3.2013. On the said date evidence was available but learned defence counsel was not present. Then case was adjourned for 17.4.2013. On the said date evidence was not available, then the case was adjourned for 13.5.2013, 14.6.2013, 10.7.2013, 11.9.2013, 23.10.2013, 20.11.2013, 15.1.2014 and 23.1.2014. On all dates the evidence was not available. On 23.1.2014 the learned trial court extended final and last opportunity for production of evidence and case was adjourned for 8.2.2014. On the date again last and final opportunity was extended and case was adjourned for 12.2.2014 when right was struck off under Order 17 rule 3 CPC."
4. Perusal of the above cited paragraph and proceedings of the learned Trial Court leads to conclusion that learned Trail Court showed extra ordinary indulgence in the matter and granted adequate opportunities to the petitioner to produce evidence in support of his claim. The benevolence shown by the learned Trial Court was misconstrued by the petitioner. In fact the conduct of the petitioner was not only carefree or negligent but also contumacious. The petitioner neither before the learned Courts below nor in the memorandum of instant revision petition has disclosed any reason which caused hindrance in his way to produce evidence before the learned Trial Court on 14.6.2013, 10.7.2013,11.9.2013, 23.10.2013,20.11.2013,15.1.2014,23.1.2014,8.2.2014 and 12.2.2014. After examining the record of the case, I am of the view that the learned Trial Court was confronted with a situation where the petitioner was not ready with his evidence. In these attending circumstances, learned Trial Court while proceeding with the suit under sub-rule (3) of Rule 1 of Order XVII CPC could close his evidence so as to get to the next stage in the trial. This is what the learned Trial Court precisely did in the present case. The citation of the Order XVII Rule 3 CPC in judgment dated 12.02.2014 does not make any difference because substance of the said judgment shows that the learned Trial Court meant to close the evidence under Order XVII Rule 1 (3) CPC.
Accordingly I hold that evidence of the petitioner was rightly closed. In arriving at this conclusion I stand fortified from the judgment rendered in the cases of Pirzada Amir Hssan and others v Mrs. Shamim Shah Nawaz and others (1984 CLC 3080) and The Administrator, Lahore Municipal Corporation, Lahore v Abdul Hamid and others (1987 CLC 1261).
5. Another aspect of the matter which dissuaded me to interfere with the concurrent findings of the learned Courts below is delay in filing revision petition. Hon'ble Supreme Court in the case of Province of Punjab through District Officer Revenue Rawalpindi and others v Muhammad Sarwar (2014 SCMR 1358 ) has held that where an aggrieved party seeks redressal again st the judgment or order through the revisional powers of the Court under Section 115 CPC, he has ninety days to make the petition, failing which the petition is liable to be dismissed. On being confronted with the said principle of law, learned counsel for the petitioner submits that the petitioner on 11.08.2014 applied for obtaining certified copy of the impugned decree dated 09.07.2014; that the petitioner had been regularly visiting the copying branch for obtaining certified copy of the decree but the same was delayed; that the certified copy of the decree which though was prepared on 11.08.2014 but was delivered to the petitioner on 01.11.2014; and, that after getting the certified copy of the impugned decree, the petitioner filed revision petition before this Court on 25.11.2014. On the basis of said facts he contends that revision petition is not barred by time; and, that since office had raised objection, the petitioner filed an application (C.M.No.2 of 2014) for condonation of delay. He requests that if there is any delay, same may be condoned on the basis of afore stated facts.
6. The afore noted arguments sans merit. The relevant provision governing the above said argument is proviso to section 1 15 (1) CPC which reads as under: "Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court, and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court. Provided that such application shall be made with ninety days of the decision of the Subordinate Court which shall provide a copy of such decision within three days thereof, and the High Court shall dispose of such application within three months."
7. The above cited provision of law makes it obligatory for the petitioner to furnish copies of the pleadings, documents and order of the subordinate Court along with revision petition. The word "certified" is absent in the above proviso to section 115 (1) CPC. Inference from the omission of word "certifie d" clearly absolves the petitioner from filing certified copies of the impugned judgments etc. along with revision petition. Approaching the Copying Agency for obtaining certified copy of the impugned judgment, therefore, would not in any manner extend the benefit of section 12 of the Limitation Act to the petitioner . The second proviso to section 115 (1) CPC makes it obligatory for the subordinate Court to provide a copy of the impugned decision within three days thereof. Here again there is no requirement of law that such a copy shall be a certified copy. It was, thus, duty of the petitioner to have approached the lower Court which passed the impugned judgment and decree to obtain copy of the same.
Once the application was made to the subordinate Court and there was failure of the lower Court to provide copy within prescribed period of three days, revision petitioner could have sought condonation of delay on the ground that it was beyond his control to obtain a copy from the lower forum. It is not the case of the petitioner that he filed an application before the learned subordinate Court for compliance of mandate of second proviso to section 115
(1) CPC and, therefore, the petitioner cannot be held entitled to get the benefit of section 12 of the Limitation Act for the time spent in obtaining certified copy of impugned decree from Copying Agency. In this regard reliance is placed on the cases of Said Muhammad v Sher Muhammad and 2 others (2001 MLD 1546) and Sultan Khan and 3 others v Sultan Khan (2004 MLD 918).
8. In view of above, prayer made in C.M.No.02 of 2014 as well as in the main revision petition cannot be granted.
Thus, prayer for interim relief also cannot be granted.
9. In the sequel, revision petition along with C.M.No.1 of 2014 and C.M.No.2 of 2014 are dismissed with no order as to costs.