Respondent No.l filed a suit against the petitioners and Haji Muhammad Irshad, respondent No.2 (now deceased, represented by his legal representatives) for a declaration that he was an owner in possession of the property in dispute and praying that the petitioners and respondent No.2, deceased, be restrained from denying his ownership and from interfering in his possession. Issues were framed, the affirmative evidence produced by respondent No.l was recorded and the oral evidence of the petitioners was also closed on 9-7-1985 through a statement made by their learned counsel. Thereafter, the petitioners applied for producing some documents as additional evidence but their prayer was refused by the learned trial Court. They filed a revision petition which was partly accepted by the learned Additional District Judge, Sialkot, vide order dated 9-10-1986.
The case was received thereafter in the learned trial Court on 16-10-1986. The Presiding Officer of the Court had been transferred and no substitute by then had taken over. Therefore; the case was put off to 30-10-1986 by the Ahlmad. On 30-10-1986 the case was adjourned to 7-12-1986 for evidence of the petitioners defendants. On 7-12-1986 respondent No.l, the plaintiff, made a written application that his learned counsel had gone to Lahore and the case may be adjourned. The learned trial Court allowed the adjournment and fixed the case for evidence of the petitioners for 14-1-1987. However, he also made an observation that no evidence of the petitioners was present.
On 14-1-1987, Mr. Abdul Hamid Cheema, Advocate, appeared for Mr. Shaukat Ali Saroia, Advocate, and made a written request that as the latter had gone to Daska to attend to his personal case the case may be adjourned. It was also mentioned in the application that some stay order had been issued by the High Court. The learned trial Court did not allow any adjournment and closed the evidence of the petitioners under Order XVII, rule 3 C.P.C. And fixed the case for rebuttal evidence of respondent No.l The petitioner filed a revision petition against the said order dated 14-1-1987, which was dismissed by the learned Additional District Judge, Sialkot, vide order dated 8-3-1987. The said orders dated 14-1-1987 and 8-3-1987, of the learned Courts below have been challenged through this writ petition. I have perused the record and have heard the arguments of the learned counsel for the parties.
2.It has been narrated above, that after the closing of the affirmative evidence of respondent No.l, the petitioners also closed their oral evidence on 9-7-1985. They reserved their right to produce only documents in their evidence. Dispute about the production of documentary evidence arose and it was through order dated 9-10-1986 of the learned Additional District Judge that the petitioners were allowed to produce some of the documents. It was after this order dated 9-10- 1986, that the matter of production of documentary evidence by the petitioners and the rebuttal evidence by respondent No.l could be taken up by the learned trial Court. For the first time thereafter the case came up before the learned trial Court on 30-10-1986 and was in routine adjourned to 7-12-1986 for evidence of the petitioners. On 7-12-1986, no adjournment was sought by the petitioners, but in fact, an adjournment was sought by respondent No.l through a written application on the ground that his learned counsel had gone to Lahore. The learned trial Court did make an observation that no evidence of the petitioners/defendants was present but this was a mistaken observation because it meant that no witnesses of the petitioners were present. In fact, the oral evidence, as already stated above, had already been closed by the petitioners and they were just to produce or get exhibited the documents which they were specifically allowed to produce in evidence through the revisional order dated 9-10-1986. Therefore, the question of the presence of witnesses of the petitioners did not arise. Accordingly, the adjournment A allowed on 7-12-1986 was only at the request of respondent No. l and not on the request of the petitioners and was not due to any default whatsoever on the part of the petitioners. When the case was taken up by the learned trial Court on 14-1-1987 it could not in the said circumstances apply the provisions of Order XVII, Rule 3, C.P.C. Because the adjournment on 7-12-1986 had not been granted at the request of the petitioners. It is now a well-settled law that the provisions contained in Order XVII, Rule 2, C.P.C. Apply only in a case where a party had been granted an earlier adjournment at his request and for his default. This was not the situation in the present case because as just now stated the adjournment on 7-12-1986 was not allowed on the request or for the default of the petitioners. Therefore, the learned trial Court had no jurisdiction to close the evidence of the petitioners under Order XVII of Rule 3, C.P.C.
3. The learned counsel for respondent No.l has argued that, in fact, no one was present on behalf of the petitioners on 14-1-1987 because Mr. Abdul Hamid Cheema, Advocate was appearing on behalf of Mr. Shaukat Ali Saroia, Advocate but he had not filed power of attorney (Vakalat Nama) in the learned trial Court and, therefore, Mr. Cheema did not appear for and on behalf of the petitioners.
The learned counsel for the petitioners before the learned trial Court was Malik Abdul Wahid, Advocate, who is now their counsel in this writ petition. He has stated that he shifted to Lahore in June 1986 and Mr. Shaukat Ali Saroia, Advocate was looking after his work in Sialkot. Therefore, Mr. Abdul Hamid Cheema will be taken to have appeared on hehalf of Malik Abdul Wahid, Advocate.
Even if it is taken that no one for the petitioners had appeared the learned trial Court could not close the evidence under Order XVII, Rule 3, C.P.C. In that case the petitioners had to be proceeded against ex parte under Order XVII, Rule 2, C.P.C. Read with Order 9, C.P.C. However, this point need not be elaborated further because the learned trial Court passed the order dated 14-1-1987 or. The mistaken belief that the adjournment on 7-12-1986 had been granted at the request of the petitioners.
4. In view of the above discussion the said order dated 14-1-1987 had been passed in the exercise of jurisdiction illegally. Similarly the order dated 8-3-1987 of the learned Additional District Judge, Sialkot suffers from the same legal infirmity. As a result the writ petition is accepted. The impugned orders dated 14-1-1987 and 8-3-1987 are set aside. The case i; sent back to the learned trial Court.
He is~ directed to allow the petitioners opportunity of producing documentary evidence in accordance with law keeping in view the limitations contained in revisional order dated 9-10-1986, which was confirmed in Writ Petition No.1118 of 1987 through order dated 11-3-1987. The case being very old the learned trial Court should dispose of the same within three months of the receipt of this order. No order as to costs.