MUHAMMAD ALI, J.---This civil revision is directed against the judgments and decrees passed by the learned trial Court as well as the learned appellate Court, whereby suit filed by the petitioners was dismissed by closing their right to produce evidence under Order XVII, Rule 3 of the Civil Procedure Code, 1908 ("C.P.C.") and the appeal filed against the decision of the trial Court was dismissed.
2. Briefly stated the facts of the case are that the petitioners instituted a suit for declaration and permanent injunction against the respondents. The suit was contested by the respondents by filing written statement. The learned trial Court framed necessary issues and fixed the case for recording of evidence of the petitioners on 08.02.2016. The right to produce evidence of the petitioners was closed and the suit was dismissed for want of evidence by the learned trial Court vide judgment and decree dated 30.04.2016. The petitioners aggrieved of this decision assailed the same in appeal. The learned appellate Court, while agreeing with the findings recorded by the learned trial Court dismissed the appeal through judgment and decree dated 24.10.2016.
3. It is argued by learned counsel for the petitioners that while passing the impugned judgments and decrees both the Courts below have ignored settled principles of law on the subject; that it was not a case for invoking penal provision of Order XVII, Rule 3, C.P.C. because the requirements of law for applying the provision were not fulfilled, it could only be invoked, if time was granted by the Court with explicit warning about the consequences; that the petitioners were not warned in advance about the possibility of closure of their right to produce evidence in case they default again; that the evidence was closed in a very short span of time, that is, within three months of framing of issues and during this period half of the time was consumed in deciding a miscellaneous application; that the petitioners were not in attendance before the Court on the day when their evidence was closed, the Court should have dismissed the suit for non-prosecution instead of closing the right to produce evidence.
4. Conversely, learned counsel for the respondents submits that ample opportunities were provided to the 4 petitioners to produce evidence; that the Court had warned the petitioners in advance and cost was also imposed on the petitioners; that the petitioners on account of their consistent failure to get evidence recorded were given last opportunity for the purpose on more than one occasion; that grant of adjournment was opposed by the respondents on a date prior to final date of hearing, the petitioners were again in default, therefore, their right was rightly closed.
5. I have heard the arguments of the learned counsel for the parties and perused the record.
6. The sole question which is to be examined and decided in the instant petition is as to whether the case of the petitioners squarely falls within the purview and mischief of Order XVII, Rule 3, C.P.C..
Perusal of the order sheet maintained by the learned trial Court reflects that issues were framed on 02.02.2016 and the case was fixed for recording evidence of the petitioners for 08.02.2016. On the said date no witness was in attendance, the case was adjourned to 10.02.2016, 12.02.2016, 17.02.2016 and 22.02.2016. From 22.02.2016 onwards, the case was adjourned for arguments on a miscellaneous application of the petitioners for permission to submit list of witnesses. The request was turned down and the application was dismissed on 05.04.2016. After this the case was once again fixed for recording evidence of the petitioners on 09.04.2016. The evidence was not produced on the adjourned date and the case was posted to different dates for the same purpose, the adjourned dates were 12.04.2016, 18.04.2016, 20.04.2016, 26.04.2016 and 30.04.2016. The petitioners were provided last opportunity to produce evidence on 17.02.2016,09.04.2016, 12.04.2016, 18.04.2016, adjournments were granted on 20.04.2016 and 26.04.2016 with last warning and cost of Rs,200/- and Rs, 300/-respectively.
7. For the purpose of deciding the controversy involved in this matter, two dates are very relevant and crucial, these are, the final date of hearing that is 30.04.2016 and 26.04.2016 being the date preceding to the final date. The adjournment was granted on 26.04.2016 on request of the petitioners as they again failed to obey direction of the Court, they were burdened with cost of Rs,300/- the matter was posted to 30.04.2016 with a warning that no further opportunity would be granted. The request for adjournment was opposed by the respondents, their objection was noted in the order. The petitioners again failed to produce witnesses on 30.04.2016. The Court because of contumacious conduct of the petitioners was left with no option but to close their right to produce evidence, in the circumstances mischief of Order XVII Rule 3, C.P.0 was squarely attracted. This being a penal provision has to be strictly construed. The Court rightly closed the evidence and proceeded to dismiss the suit.
8. The argument of the learned counsel for the petitioners that the petitioners were not cautioned in advance about the penal consequences is not tenable. The interim orders are quite explicit, the petitioners were warned in advance of the consequences by stipulating that there would be no further adjournment in the matter. The petitioners were cautioned by the Court on six different occasions that it would be the final opportunity to produce evidence.
9. So far as the contention of the learned counsel for the petitioners that evidence was closed in a short span of time is concerned, suffice it to say that the case was adjourned ten times for recording evidence of the petitioners, there was no occasion for the Court to grant further adjournment. The petitioners had made it impossible for the Court to make further progress in the suit. In such a situation, it hardly makes a difference, if the evidence was closed in less duration of time. Reference in this behalf could be made to the case of Rana Tanveer Khan v. Naseerud-Din and others (2015 SCM R 1401), the relevant portion of the judgment applicable to the proposition in the instant case reads as under:-- "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 oppor-tunity, 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.
10.The argument of the learned counsel for the petitioners that the petitioners were not in attendance on the final date of hearing, the Court had no intimation, if the evidence would be produced, as such, the suit should have been dismissed in default instead of closing the right to produce evidence, this assertion is of no help to the petitioners. It was held in the case of Executive Engineer, Peshawar v. Messrs Tour Muhammad and Sons and 4 others (1983 SCMR 619), that Rule 3 of Order XVII, C.P.0 could be pressed into service, even 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.
11. In view of the above discussion, this Court has no hesitation to hold that the concurrent findings recorded by two Courts below are in accordance with law, no illegality or material irregularity is found. Resultantly, this civil revision fails and is hereby dismissed. There is no order as to costs.