' This revision was directed against the judgment dated 6-6-1984 of the learned District Judge, Dera Ghazi Khan whereby the order of the learned Senior Civil Judge closing the evidence of the respondents-defendants was set aside and the application under Order IX, rule 13, C.P. C. for setting aside the ex parte decree dated 8-1-1981 was dismissed for want of evidence.
2. The facts relevant for appreciating the respective pleas of the parties are that on 5-11-1980 ex parte proceedings were ordered at rebuttal stage in a suit for pre-emption filed by the petitioners- plaintiffs against the respondents-defendants. Thereafter, on 8-1-1981 ex parte decree was passed.
The respondents-defendants on 6-4-1981 filed an application seeking the setting aside of the ex parte decree. A reply was filed by the petitioners plaintiff on 29-7-1981 and the issues were framed by the learned Senior Civil Judge on this application on 12-11-1981. The matter was fixed for evidence of the parties for 5-1-1982. The evidence was not produced on two dates and then an application for seeking amendment of the application for setting aside the ex parte decree was submitted by the respondents-defendants. This application was rejected ultimately on 14-3-1983 and the matter was then adjourned for production of evidence of the respondents-defendants for 4th of June, 1983. On this date on request of the respondents-defendants the matter was adjourned to 8-10-1983. On 8-10-1983 the evidence of the respondents-defendants was present but the same could not b." recorded as the Presiding Officer had been transferred in the meanwhile. The matter was then adjourned to 2-1-1984. This date was not fixed for the production of evidence still the respondents-defendants brought their evidence but the same could not be recorded by the Court on account of excessive work. The matter was adjourned for the evidence of the respondent-defendants for 20-2-1984. On this date the evidence was not produced and adjournment was sought. Learned trial Court while adjourning the matter stated that last and final opportunity was being granted. On the adjourned date i.e. 16-4-1984 the evidence was not produced and the learned trial Court taking the view that the respondents were not entitled to any further indulgence as they had failed to produce the evidence despite grant of 12 adjournments, accordingly dismissed the application for setting aside the ex parte decree under Order XVII, rule 1(3), C.P.C. or rule 3 thereof. The appeal filed by the respondents-defendants was, however, accepted by the learned District Judge observing that in reality the respondents-defendants got only one opportunity for production of their evidence but to their bad luck the same was described to be the last and final opportunity. It was further observed that the respondents-defendants should have been provided with a fair chance to produce their evidence. It was also noted by the learned appellate Court that even the respondents-defendants counsel was not asked to state if the evidence available on the date was to be produced or not and that in other words the respondents-defendants counsel was not required to state as to whether the evidence or documents available with him were to be produced or not and that in this manner prejudice was caused to the respondents-defendants. The judgment of the learned District Judge was then assailed by filing the present civil revision.
3. Learned counsel in support of the revision petition argued that the learned appellate Court erred in law in interfering with the discretionary order of the trial Court closing the evidence and dismissing the application moved under Order IX, rule 13, C.P.C.; that the observation that a fair opportunity should have been granted was contrary to record as in fact 12 adjournments had been granted to the respondents-defendants for production of the evidence; and that the over-all conduct of the respondents-defendants disentitled them to the grant of further indulgence.
Learned counsel in support of these submissions referred to certain precedents but these need not be noted in detail as they were distinguishable on facts and in particular circumstances of each case it was held that the order closing the evidence and refusing to grant further adjournment required no interference. Learned counsel particularly relied upon Wahid Bakhsh v. Mst. Mubarik etc., NLR 1982 C L J 194, decided by a learned Judge of this Court. In this case also it was held that an order closing the evidence in a pre-emption suit was not open to interference in revisional jurisdiction of the High Court. It is, therefore, apparent that in revisional jurisdiction this Court refused to interfere with an order in the particular circumstances of the case. In the case in hand the appellate Court differed with the learned trial Court and came to the conclusion that the respondents-defendants were entitled to the grant of further opportunity to substantiate their application submitted under Order IX, rule 13, C.P.C. The, scope of interference in the discretionary order is wider in appeal as compared to revisional jurisdiction. It is also well-established that the previous default if any is not to be taken note of while considering the question under Order XVII, rule 1 (3), C.P.C. or- rule 3 thereof, as to whether a party is entitled to the grant of further opportunity., After rejection of the application for amendment the date fixed for production of evidence was 4-6-1983. From this date the matter was adjourned to 8-10-1983 on the request of the respondents-defendants. On the adjourned date evidence was present but the same could not be recorded as the Presiding Officer had been transferred. On the next date i.e. 2nd of January, 1984 the respondent's evidence again was present but was not recorded on account of excessive work.
The matter was adjourned for the evidence of the respondents to 20-2-1984 without any request of the respondents. While so adjourning the learned Court observed that last and final opportunity for production of evidence was being granted. It will, therefore, be seen that after the dismissal of the application for amendment of the application, on two dates the respondents-defendant's did bring the evidence but the same was not recorded for no fault of the respondents-defendants, 20th February, 1984 was in these circumstances first date when default was committed by the respondents-defendnats. In these circumstances the failure of the respondents-defendants to produce the evidence on the 16th April, 1984 should have been inquired into and in case the respondents-defendants were able to show a reasonable cause they were entitled to the grant of further indulgence: This could not be done as the learned trial Judge in view of the observation that last and final opportunity was being granted had fore-closed the matter of exercise of his discretion. The learned District Judge further noted that the counsel was not even asked if he had any evidence documentary or oral on the said date available for production. The learned District Judge was, therefore, justified in observing that in the aforesaid manner prejudice had been caused to the respondents-defendants. The order made by the learned appellate Court in exercise of its appellate power was, therefore, justified in law. This being the position interference in exercise of revisional jurisdiction of this Court is not warranted. This revision petition, therefore, fails and is dismissed with no order as to costs. The parties are directed to appear before the learned trial Court on 15-5-1985. The learned trial Court will grant one opportunity to the respondents- defendants to produce their evidence and also after allowing time to the petitioners-plaintiffs for producing their evidence in rebuttal will decide the matter by the 15th of July, 1985.
Revision