' The judgment in this revision petition will also dispose off Revision Petition Nb. 111 of 1982, because the essential facts and law points involved in both of them are the same.
2. So far as the facts of the present revision petition are concerned, Raza Muhammad Khan, petitioner, had instituted a suit on 14th May, 1978 against All Afsar and Muhammad Gulzar Khan, defendant-respondents, in the Court of Senior Civil Judge, Mansehra (registered under No, 214/1), for a declaration that the suit land was in fact sale transaction by defendant No, 2 in favour of defendant No, 1 and that it was fictitiously shown as an exchange transaction in the registered sale-deed, and for possession by pre-emption of the suit land on payment of Rs, 500 as price. The suit was contested by the defendants and after framing the issues, the learned Senior Civil Judge fixed the case for recording the evidence of the plaintiff. On 29th May, 1979, the evidence of Patwari was recorded and the case was adjourned to 16th July, 1979 for recording the remaining evidence of the plaintiff. On the said date, the plaintiff's evidence was not present and the case was adjourned to 15th October, 1979, on which date the Court was busy in election work and the evidence could not be recorded and so the case was adjourned to 6th December, 1979. On the said date, the plaintiff's .Evidence was not present and counsel for defendants was also not present and the case was adjourned to 30th January, 1980. On this date as well neither the evidence of the plaintiffs were present nor the counsel for defendants was also present and the case was adjourned to 17th March, 1980, on which date again the plaintiff's evidence was not present and the trial Court closed it under Order XVII, rule 3, C,P.C. And as the statement of Patwari had been recorded, the case was adjourned for recording the evidence of the defendant on 16th April, 1980.
However, the plaintiff presented a review petition on 6th April, 1980 to review the order, dated 17th March, 1980. This application was contested by the defendants and the parties were asked to produce evidence pro and contra the application. On 4th February, 1981, the learned Senior Civil Judge not only rejected the review petition but also dismissed the suit of the plaintiff on merit.
3. The facts giving rise to Civil Revision No, 111 of 1982 are that Raza Muhammad Khan, plaintiff, had instituted Suit No, 376/1 on 17th October, 1978 in the Court of Senior Civil Judge, Mansehra, against Ali Afsar and Muhammad Gulzar Khan defendant-petitioners, for possession by per-emption of the suit land. The suit was contested by both the defendants and after framing the issues, the trial Court fixed the case for recording evidence of the plaintiff. On 12th September, 1979, the evidence of Patwari was recorded and the case was adjourned to 15th November, 1979 for recording other evidence of the plaintiff. On the said date, the parties were present with their counsel and they wanted adjournment for producing evidence and so the case was adjourned to 6th December, 1979. On this date, the plaintiff's evidence was not present as also the counsel for defendants was not present, so the case was adjourned to 30th January, 1980. On this date as well, the plaintiff's evidence was not present and counsel for defendants were also not present and the case was adjourned to 17th March, 1980. On the latter date again, the plaintiff's evidence was not present and the learned trial Court closed it under Order XVII, rule 3, C.P.C. And as the statement of Patwari had been recorded, the case was adjourned to 16th April, 1980 for recording evidence of the defendants.
However, on 6th April, 1980 the plaintiff moved a review petition for review of the order, dated 17th March, 1980. The defendants controverted this application and the parties were asked by the trial Court to produce evidence pro and contra the review petition. On 4th February, 1981, the learned Senior Civil Judge not only dismissed the review petition but also dismissed the suit of the plaintiff on merit.
4. Aggrieved by the orders dated 4th February, 1981 in both the Suits Nos. 214/1 and 376/1, the plaintiff Raza Muhammad Khan, filed appeals under Nos. 22/13 and 23/13 in the Court of District Judge, Mansehra on 1 ith February, 1981. The learned District Judge converted both these appeals into Revision Petitions Nos. 23/CR and 24/CR and vide his judgment, dated 12th June, 1982, accepted both the revision petitions and set aside the orders/judgments, dated 4th February, 1981 of the trial Court and allowed the petitioner-plaintiff to produce his evidence in the lower Court on payment of Rs, 300 as costs in each case. This time the defendant Ali Afsar in Suit No, 214/1 and both the defendants in Suit No, 376/1 filed the aforesaid two revision petitions in this Court.
5. It was urged by Qazi Abdur Rashid, the learned counsel for the petitioners in both the revision petitions that, firstly, the learned District Judge had erroneously treated both the appeals as revision petitions because the trial Court had not only rejected the review application of the plaintiff but had also decided the case on merit and, secondly, the trial Court had rightly exercised its discretion under Order XVII, rule 3, C.P.C. Which should have not been interfered with by the learned District Judge.
6. In so far as the first point is concerned, I quite agree with the contention of the learned counsel for the petitioners because as is apparent from the order/judgment, dated 4th February, 1981 of the learned Senior Civil Judge, Mansehra, not only the review petition of the plaintiff was dismissed, but his suit was also dismissed on merit. This decision of the trial Court operated as a decree and the plaintiff had rightly preferred an appeal against that decision. The wordings of section 96, C.P.C. Are very clear which inter alia lays down that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. It shall thus be seen that the Court exercising original jurisdiction in this case, i. e. The Senior 4 Civil Judge, Mansehra, had by deciding the suit on merit granted a decreed in favour of the defendants. As such the decision: dated 4th February, 1981 of the learned Senior Civil Judge could only be challenged by way of an appeal. On the contrary, revision under section 115 could only lie where any case had been decided by any Court and in which no appeal could lie. No doubt, if the learned Senior Civil Judge had only disposed of the review application and had not decided the suit on merit, then a revision could lie on the order rejecting the review petition, because an order passed in revision does not operate as a decree and no appeal lies therefrom and the same could only be assailed through a revision petition.
7. The learned District Judge, it appears, could not appreciate the difference between the wordings of sections 96 and 115 of the Code of Civil Procedure. The wording of section 96 inter alia is that an appeal shall lie from every decree passed by any Court exercising original jurisdiction, whereas section 115 lays down that the record of any case can be called for which has been decided by any Court and in which no appeal lies thereto. Under section 96, appeal lies from a decree and under section 115, record of any case can be called for in which no appeal lies thereto. The learned District Judge was, therefore, in error when he converted both the appeals of plaintiff Raza Muhammad Khan into revision petitions. Agreeing with the learned counsel for the present petitioners, I would, therefore, modify the impugned judgment of the learned District Judge t the extent that it is a judgment in appeal and not in revision and both the Revision Petitions Nos. 23/CR and 24/CR, instituted in his Court, shall treated as appeals.
8. Now the question remains whether the learned District Judge had the jurisdiction to pass the impugned order and set aside the order/judgment, dated 4th February, 1981 of the learned Senior Civil Judge. From the facts, stated above, it shall be seen that on two occasions, the counsel for defendants was not present and even if the evidence of the plaintiff was in attendance it could not be recorded due to absence of counsel for the defendants. This would show that only two adjournments were granted at the request of the plaintiff. No doubt, the provisions of Order XVII, rule 3, C.P.C. Empower the Court to decide the case forthwith if the party to whom time has been granted fails to produce his evidence but there are many authorities of the Superior Courts wherein it has been held that these provisions are penal in nature and should be construed strictly and stringent provision of rule not to be applied unless case does not admit of application D of any other provision of Code. In support of this view, reference with benefit may be made to Ajab Khan v.
Karimi Industries and others where principles for the application of provision of Order XVII, rule 3, C.P.C. Have been very elaborately discussed and explained. No doubt, in cases reported as PLD 1981 SC 474, 1981 CLC 1445, 1982 CLC 2223 and NLR 1983 Civil 413 the order of the trial Court passed under. Order XVII, rule 3, C.P.C. Was upheld but it may be stated here, with utmost respect, that the circumstances of the present two revision petitions are somewhat different. On two occasions the counsel for defendants was not present although the evidence of the plaintiff was also not present, but even if the witnesses were in attendance, the evidence could not be recorded on account of absence of the said counsel. It was further urged by the learned counsel for the petitioners that although the learned District Judge had accepted the revision petitions, but he had made no order to set aside the decree granted by the learned Senior Civil Judge, but this argument I without any force, for the reason that the learned District Judge had accepted the appeals and had remanded the case back to the trial Court which clearly implied that he had set aside the order/judgment of the letter and the mere fact that the judgment of the learned District Judge d not clearly mention the setting aside of the decree is not fatal and illegal.
9. I am, therefore, of the considered opinion that the learned District Judge was within his right to set aside the order/judgment, dated 4th February, 1981 of the learned Senior Civil Judge. I would, therefore, uphold the impugned judgments of the learned District Judge as modified as aforesaid and dismiss both these revision petitions with no order as to costs. However, the learned trial Court shall grant only one more opportunity to the plaintiff to produce his entire evidence in terms of the judgment of the learned District Judge, Mansehra. The parties are directed to appear before the trial Court on 18th July, 1983. 1