WIQAR AHMAD, J. This order is directed to dispose of the petition filed by petitioners under section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC').
2. Plaintif fs (petitioners herein) had initially filed a suit against respondents in the Court of Assistant Commissioner Swat established under the Provincially Administered Tribal Areas (Application of laws) Regulation, 1975 (hereinafter referred to as "the PATA Regulation"). Plaintiffs had contended in their plaint that the property in dispute (fully described in headnote of the plaint) had been their sole ownership in possession and defendants had got no concern with same. They had also disputed the entries made in the revenue record in the name of defendants No. 1 to 6. They had also sought permanent injunction that respondents be restrained from any sort of interference in the prope rty in dispute and in the alternative they had prayed for possession. On appearance before learned civil Court, the defendants submitted their written reply . Suit of plaintif fs/petitioners had initially been dismissed by Assistant Commissioner Swat vide his order dated 30.05.1989. Appeal filed there- against had also been dismissed by Additional Commissioner Malakand Division vide his order dated 27.01.1990.
Feeling aggrieved from orders of the fora below , the petitioners have filed a revision petition before Additional Secretary Home, Government of Khyber Pakhtunkhwa, which had also dismissed vide order dated 17.12.1991.
Petitioners had then filed a writ petition No. 1189 of 1992 before this Court, which had been dismissed as withdrawn vide order dated 19.04.1994 and plaintif fs/petitioners were granted permission to file a fresh suit.
3. Plaintif fs (petitioners herein) had then filed a fresh suit against respondents and other set of defendants for declaration etc to the effect that the property in dispute had been owned and possessed by them and defendants had got no nexus with same. They have also questioned the settlement decision dated 06.11.1986, on the dint of which the property in dispute had been declared ownership of predecessor- in-interest of defendants No. 1 to 6. The entries made in the revenue record in the names of defendants No. 1 to 6 had also been challenged. They had also prayed for permanent injunction to the effect that respondents be restrained from any sort of interference in the property in dispute and in the alternative they had also sought possession.
4. Defendants were summoned by learned trial Court, who have contested the suit by filing their separate written statements. Contentious points of the parties were reduced into issues and the parties were allowed to produce their evidence. Despite availing numerous opportunities from learned civil Court, the petitioners could not produce their evidence, therefore a notice under Order XVII Rule 3 CPC had been served upon them on 14.07.2008.
Petitioners failed to produce their evidence once again, therefore their suit was dismissed by learned civil Court vide order dated 16.07.2008. Feeling aggrieved therefrom, the petitioners have filed an appeal before the learned appellate Court, which was also dismissed vide judgment dated 06.03.2010 . Feeling aggrieved from orders of both the Courts below , petitioners have filed the instant civil revision with following prayer; "It is therefore humbly prayed that by the acceptance of instant revision petition, both the impugned orders, judgments and decrees of the learned Lower Courts Swat may kindly be set aside and the case be remanded to the trial Court for decision afresh after giving an opportunity to the petitioners to record their evidence."
5. The learned counsel appearing on behalf of petitioners has contended that an adequate opportunity of hearing has not been afforded to the petitioners. He also submitted that the witnesses produced by the petitioners on 07.06.2008 and 16.06.2008 had not been examined which shows that petitioners had taken sufficient interest and had fulfilled the obligation existing on their part. He also stated that even if the Court is found to have proceeded against the petitioners under Order XVII Rule 3 CPC rightly then the Court was supposed to have proceeded further after closing right of evidence of the petitioners and should have posted the case for evidence of the defendants and then decided the case on merits. The learned counsel also added that attorney of the petitioners was present but he had not been examined on the date when the Court had invoked the provision of Order XVII Rule 3 CPC. In this respect, he placed reliance upon judgments of Hon'ble Supreme Court of Pakistan rendered in the case of "Muhammad Aslant v/s Nazir Ahmad reported as 2008 SCMR 942 and the case of "Sved Tahir Hussain Mehmoodi & others v/s Agha Sved Liaqat Ali & others" reported as 2014 SCMR 637 as well as an earlier judgment of this Court given in the case of "Abdul Wahid v/s Sved Ghulam Muiaddad & 6 others" reported as 1989 CLC 697 and judgment of Hon'ble Lahore High Court rendered in the case of "Messrs Transtech Limited v/s Messrs Pakistan T obacco Company Limited" reported as 2004 MLD 1242 .
6. On the other hand, learned counsel for respondents have referred to chequered history of the case and submitted that the property had been held to be ownership of respondents/defendants in the report of "Dir-Swat Land Dispute Enquiry Commission" and then notified in their favour vide a gazette notification dated 19.09.1975 under Martial Law Regulation No. 122. He added that the suit of petitioners had earlier been dismissed by all the forums working under the PATA Regulat ion and that the situation was quite clear to the petitioners even before filing the instant suit in the regular Courts in the year 1995. He added that the petitioners have been pursuing the instant litigation not for any other purpose but for dragging the respondents in Courts for no good reason. He also submitted that all the orders of dismissal of the suit, appeal and revision as well as the proceedings conducted under Order XVII Rule 3 CPC not once but twice by the learned civil Court shows that petitioners had been intentionally withholding their evidence and at time their appearances from the Courts of law so as to ensure that the litigation did not have its final ending. The learned counsel for respondents placed reliance upon the recent judgment of Hon'ble Supreme Court of Pakistan given in the case of "Moon Enterprises CNG Station, Rawalpindi v/s Sui Northern Gas Pipelines, Limited through General Manager Rawalpindi and another" reported as 2020 SCMR 300, as well as judgments rendered in the case of "Ghulam Qadir alias Qadir Bakhsh v/s Hall Muhammad Suleman and 6 others" reported as PLD 2003 Supreme Court 180, the case of "Rana Tanveer Khan v/s Naseer-ud-Din and others" reported as 2015 SCMR1401., the case of "Syed Tahir Hussain Mehboodi and others v/s Agha Sved Liagat All and others" reported as 2014 SCMR 637 as well as other judgments reported as 1990 CLC 729, 1992 CLC 102, 1994 CLC 1679 , 1994 CLC 1007 and 2017 MLD 1544 and submitted that where conduct of the petitioners was quite apparent before the Court that all the delay caused by them had not only been contumacious but intentional, then setting aside of the judgment and decree would not be serving the interest of justice.
7. I have heard arguments of learned counsel for the parties and perused the record.
8. Perusal of record reveals that litigation in the instant matter had commenced on 30.03.1989 where a suit had been filed by the petitioners under the PATA Regulation in the Court established therein. Said suit had been dismissed, appeal filed there-against had also been dismissed. A revision pending before Additional Secretary Home working under the PATA Regula tion had also been dismissed vide order dated 17.12.1991. Feeling aggrieved from orders of learned forums below , petitioners had filed writ petitio n No. 1189 of 1992 before this Court, which had subsequently been withdrawn vide order dated 19.04.1994 with permission to file a fresh suit.
Thereafter the instant suit was filed on 13.06.1995 as the PATA Regulation had been repealed and regular civil Courts notified in the area. Petitioners had failed to produce their evidence till 18.11.2002. Vide order dated 18.11.2002 their suit was dismissed under Order XVII Rule 3 CPC. Petitioners have then filed an appeal before the learned appellate Court, which was accepted vide order dated 12.03.2004 and suit of petitioners had been restored with cost of Rs. 3,000/-.
Thereafter the suit had run till 16.07.2008 but petitioners had failed to produce their evidence. The Court had then invoked the provision of Order XVII Rule 3 CPC and had dismissed the suit again. Feeling aggrieved therefrom petitioners had filed an appeal before the learned appellate Court, which was once dismissed for non-prosecution on 10.12.2009. On restoration of the appeal, same was finally dismissed vide judgment dated 06.03.2010 of the Court of learned Additional District Judge Swat. Then the petitioners had filed the instant revision petition which was also dismissed for non-prosecution on 04.04.201 1. An application had been filed by the petitioners which was allowed and the case restored by this Court vide order dated 19.01.2017 with a cost of Rs. 10,000/.
9. Perusal of the order sheets showing proceedings of dates of hearing fixed before 16.07.2008 (on which date the impugned order had been passed) are also worth consideration. Two official witnesses of the plaintiffs/petitioners i.e. Patwari and Kanoongo along with their attorney were present on 24.01.2005 but they could not be examined due to non-availability of learned counsel for petitioners. Same was the case on 01.02.2005 when despite availability of official witnesses they could not be examined again due to absence of their counsel. On 17.05.2005 both the official witnesses have recorded their statements as PW-1 and PW-2 respectively. On 31.10.2007 the case had again been adjourned due to non-availability of counsel for petitioners. Thereafter on several dates of hearing petitioners had failed to produce their evidence on one pretext or another, therefore a second notice under Order XVII Rule 3 had also been served upon them on 14.07.2008. Petitioners failed to produce their evidence despite last warning, therefore their suit was dismissed by learned civil Court vide order dated 16.07.2008.
10. Contentions of learned counsel for petitioners have not been persuasive. The judgments relied upon by him are differentiable from facts and circums tances of the present case and the ratio laid down therein cannot be applied to the instant case. All the history of the case briefly reproduced which is bearing what witnessed to one of the two phenomenos.
Either the petitioners have got no interest with the litigation in the instant case or they have been dragging this litigation for certain other purposes. Before proceedings under Order XVII Rule 3 CPC and closing the right of plaintif fs/petitioners to produce their evidence, the Court had granted innumerable opportunities to the plaintiffs/petitioners. Twice notices under Order XVII Rule 3 CPC had been repeated to the petitioners. The contention of learned counsel for petitioners that on 07.06.2008 and 16.06.2008 they had produced their two witnesses while other two witnesses had been produced on 14.07.2007, is also misplaced. Perusal of record reveals that on 17.05.2005 the Patwari Halqa and ADK had appeared as witnesses while on 14.04.2007 the other two official witnesses had been examined, who had not been produced by the petitioners but their attendance had rather been procured by the Court through the process of procuring attendance provided under the law. They had been official witnesses and not the private witnesses of the plaintiffs/petitioners.
Nowhere could the plaintif fs/petitioners show or point out that they had ever produced any of their private witnesses since the framing of issues in the suit till the closure of their right of evidence under Order XVII Rule 3 CPC the second time. When such was the situation, setting aside of the order would pass on a message to parities litigating in civil Courts that their rights of produ cing evidence in the suit had been unlimited. They may also get an impression that they can drag their suit and vex the opponents for unlimited times where the litigation may not see an end for decades and decades. Such like approach may also have the potential of bringing the system of civil litigation to a collapse. When the Courts would not be able to compel a litigant who intends to prolong the litigation, for producing its evidence by taking the penal actions the system would not be able to get rid of such unscrupulous litigants and their cases. It was in such a background that the Hon'ble Supreme Court had observed while giving its judgment in the case of "Moon Enterprises CNG Station, Rawalpindi v/s Sui Northern Gas Pipelines Limited through General Manager Rawalpindi and another" reported as 2020 SCMR 300 that for the purpose of maintaining confidence of the litigants in Court system and presiding officers it was important that where a last opportunity to produce evidence was granted and the parties had been warned of the consequences, the Court must enforce its order unfailingly. It had also been observed that such like orders would not only put the system back on track and reaffirm the majesty of law but would also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reason. Relevant part of observations of the august Supreme Court is reproduced hereunder for ready reference; "In our view it is important for the purpose of maintaining the confidence of the litigants in the court systems and the presiding officers that where last opportunity to produce evidence is granted and the party has been warned of the consequences, the court must enforce its order unfailingly and unscrupulously without exception. Such order would in our opinion not only put the system back on track and reaffirm the majesty of the law but also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reason. Where the Court has passed an order granting the last opportunity, it has not only passed a judicial order but also made a promise to the parties to the lis that no further adjournments will be granted for any reason. The Court must enforce its order and honour its promise. There is absolutely no room or choice to do anything else. The order to close the right to produce evidence must automatically follow failure to produce evidence despite last opportunity coupled with a warning.
The trend of granting (Akhri Mouqa) then (Qatai Akhri Mouqa) and then (Qatai Qatai Akhri Mouqa) make a mockery of the provisions of law and those responsible to interpret and implement it. Such practices must be discontinued, forthwith."
Almost similar findings had also been recorded by Hon'ble Supreme Court of Pakistan in the case of "Rana Tanveer Khan v/s Naseer-ud-Din and others" reported as 2015 SCMR 1401 by observing; "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. As far as the argument that at least his statement should have been recorded, suffice it to say that the eventuality in which it should be done has been elaborated in the latest verdict of this Court (2014 SCMR 637). From the record it does not transpire if the appellant was present on the day when his evidence was closed and/or he asked the court to be examined; this has never been the case of the appellant throughout the proceedings of this case at any stage; as there is no ground set out in the first memo of appeal or in the revision petition. Resultantly, we are not persuaded to hold that the provisions of law (Order XVII, Rule 3, C.P.C.) have been wrongly applied to the appellant's case or that he should be given the benefit of the judgment Muhammad Aslam v. Nazir Ahmed (2008 SCMR 942). In light of the above, we do not find any merit in this appeal which is accordingly dismissed."
Hon'ble Apex Court while giving its judgment in the case of "Syed Tahir Hussain Mehmoodi & others v/s Agha Sved Liaqat Ali & others" reported as 2014 SCMR 637 had also observed that once the case of a delinquent litigant squarely fell within the purview of mischief of Order XVII Rule 3 CPC then neither a concession should be shown to such litigant nor a lenient view favouring him should be resorted to. Relevant part of observations of the august Court is also reproduced hereunder; "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, C.P.C. 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, 1973 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."
The Hon'ble Supreme Court had also held that if the orders passed under Order XVII Rule 3 CPC are liberally set aside then there would be no discipline in the adjudication of civil litigations and the delinquent litigant whose case though was squarely hit and covered by the penal provisions of Order XVII Rule 3 CPC would be given a chance to his advantage and to the disadvantage of his opposing side. Such an approach was not held to be according to spirit of the law. Further reliance in this respect may be placed on judgment of Hon'ble Supreme Court rendered in the case of "Ghulam Qadir alias Qadir Bakhsh v/s Hail Muhammad Suleman and 6 others" reported as PLD 2003 Supreme Court 180.
11. Judgments relied upon by the learned counsel for petitioners were distinguishable from facts of the instant case and cannot therefore be relied upon. So far as contention of learned counsel for petitioners that after striking-off right of the petitioners to produce evidence the case should have been further processed and evidence of the defendants should be recorded, is concerned, it is important to be noted that plaintiffs had not got even a single witness examined in support of their case. Pleadings are not evidence by itself. When the plaintiffs had not been able to examine any of their evidence in support of their case there had in-fact been no evidence in support of contention of the plaintiffs. In such circumstances, putting the case for defendants' evidence and recording the same would have been a matter of mere legal formality having no substantial effect. When the plaintiffs had failed to substantiate their case through their own evidence then whether or not further steps taken in the suit would be meaningless. Such a ground is therefore not found suf ficient for reversal of the impugned orders.
12. No illegality or material irregularity could be pointed out by learned counsel for petitioners in the impugned orders of learned two Courts below . The revision petition in hand was found lacking substance and same is accordingly dismissed.