' This petition for civil revision is directed against the order dated 11th October, 1982 passed by Mr. Khalil Ahmad, Civil Judge, Gujranwala, whereby he closed the evidence of the petitioners- defendants under the provisions of Order XVII, rule 3, C. P. C. And fixed the case for final hearing of arguments.
2. The respondent has filed a suit for possession of land, the subject matter of this litigation, by pre- emption against the petitioners. The respondent claiming himself to be the son of one of the vendors and nephew of the other alleged that his right of pre-emption was superior to the vendees.
3. The suit was of course resisted by the petitioners-defendants and the necessary issues arising out of the parties pleadings were duly framed. Evidence of the defendants was partly recorded on 24th June, 1982 and the case was adjourned to 4th September, 1982 for their remaining evidence but in the meantime the case was transferred to the Court of Mr. Khalil Ahmad. On 4th September, 1982, the transferee Court directed the issuance of notice to the petitioner's counsel for 20th September, 1982.
4. On 20th September, 1982, the plaintiff-respondent was present personally while Mr. Muhammad Ikramullah Salimi, learned counsel for the petitioners-defendants also put in appearance and the case was adjourned to 11th October, 1982 for the defendant's evidence.
5. On 11th October, 1982, two witnesses produced by the defendants-petitioners were examined but their remaining evidence was not in attendance. The learned Civil Judge thereupon passed the impugned order closing the evidence of the defendants under Order XVII, rule 3, C. P. C.
6. Learned counsel for the petitioners has vehemently argued that the provisions of rule 3 of Order XVII of the Code of Civil Procedure were not attracted in the circumstances of this case because the said provisions are applicable where time has been granted to party at the instance of that party to produce evidence or to cause the attendance of its witnesses or to perform any other act necessary for the progress of the suit and the party commits default in producing its evidence or in causing the attendance of its witnesses or in performing any other act necessary for the progress of the suit on the date so granted. He further submits that in the circumstances of this case, 11th October, 1982 was fixed as a date of hearing for the defendants' evidence in routine and not at the request of the defendants-petitioners. They did not ask for any time or opportunity on 20th September, 1982 when Ilth October. 1982 was fixed as next date of hearing. In Maulvi Abdul Aziz Khan v. Mst. Shah Jehan Begum and two others, it was held that rule 3 of Order XVII of the Code of Civil Procedure applied to a case where time had been granted to party at his instance, to produce or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and would not apply unless default had been committed by such party in doing the act for which the time was granted. In Abdul Majid v. Walt Muhammad also it was held that provisions of Order XVII, rule 3 of the Code of Civil Procedure were not applicable unless time had been granted to a party at his instance to do one or other of the three things mentioned in the rule and that this rule was not applicable if the suit was not adjourned at the instance of the party concerned. This principle was also followed in Lal v. Ghulam Muhammad and another wherein it was held that the provisions as contained in rule 3 of Order XVII, C. P. C. Applied to the cases where the case had been adjourned at the instance of a particular party and the said party failed to produce evidence or to cause attendance of his witnesses or to perform any other act necessary for the progress of the suit, for which the time was granted. In a case in which no adjournment was granted at the instance of the party for the production of his evidence and it was the first date fixed for the purpose of producing evidence, provisions of rule 3 of Order XVII of the Code of Civil Procedure were not applicable.
7. Learned counsel for the respondent-plaintiff has argued that instant petition for civil revision in view of the value of the suit for the purposes of jurisdiction was not competent before this Court. He contended that the value of the suit for the purposes of jurisdiction being less than Rs, 50,000 the revision was competent before the District Court and not before this Court. This argument of the learned counsel for the respondent is absolutely devoid of any substance inasmuch as according to the provision of section 115 of the Code of Civil Procedure, the High Court is competent to call for the record of any case which has been decided by any Court subordinate to such Court in which no appeal lies. The High Court is further competent to make such order in the case as it thinks fit if it appears that the subordinate Court has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with meterial irregularity. It is true that by Law Reform Ordinance, 1972, subsection (2) was added whereby revisional jurisdiction was also conferred upon the District Court in respect of any case decided by a Court subordinate to such District Court where the amount or value. Of the subject- matter whereof did not exceed the limits of the appellate jurisdiction of the District Court. It, however, is quite clear that by adding subsection (2) to section 115 of the Code of Civil Procedure, the revisional jurisdiction of the High Court has not in any manner been curtailed and the High Court is still competent to exercise its revisional jurisdiction even in respect of those cases where an order is made by a subordinate Court in a suit in which value of the subject-matter of the suit does not exceed the limits of appellate jurisdiction of the District Court. This is confirmed by the provisions of subsection (3) of section 115, ibid which reads :- "(3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such2 1 3 application shall be made to either of them."
8. On merits too, the learned counsel for the respondent has urged that 11th October, 1982 was allowed as next date of hearing when the defendants-petitioners had produced their evidence and, therefore, provisions of rule 3 of the Order XVII. C. P. C. Could justifiably be applied.
As already stated, 11th October, 1982 was fixed as date of hearing for defendants' evidence in routine and not at the instance of the defendants-petitioners. It cannot be said that at their request or at their instance. They were allowed an adjournment to produce evidence on 11th October, 1982.
In this view of the matter, it is concluded that provisions of Order XVII rule 3, C. P. C. We're not applicable in the circumstances of this case and thus the impugned order being unwarranted it suffers from material irregularity within the meaning of section 115, C. P. C. The petition for civil revision is, therefore, accepted, the impugned order set aside and the case is remanded to the learned trial Court with the direction to decide it afresh in accordance with law after affording an opportunity to the petitioners-defendants to produce their evidence. No order is made as to costs. PLD 1971 SC 434 PLD 1963 Kar. '171 PLD 1975 Lah. 385