' This case came up before me on the 20th and after hearing the petitioner's counsel, executing Court was required to cause the relevant file to be produced in this Court today through a special messenger because otherwise adjournment for more than a month would have had to be made.
Record has been brought but the petitioner's counsel has not appeared. Petitioner is desirous of the consideration of his case being put off for the reason that his counsel has left for Rawalpindi to attend to his cases fixed in the Supreme Court. I do not consider this to, per se, be a valid ground for adjournment because this Court cannot stop functioning during the absence out of station of its Advocates in connection with their professional engagements before the Supreme Court or the Benches because this is quite a frequent happening in about 2/3rds of the cases of a day's fixture.
Actually, in situations resulting from clash of engagements, it is expected of the concerned counsel that he will make suitable arrangements for conduct of his cases during his absence because no counsel can take any Court for granted in leaving his cases unattended so that adjournments may be made. I cannot discover any reason why in this simple case the petitioner's counsel may not have easily instructed any other counsel to attend to the short point involved in it but he has not cared to do so presumably because a stay order had been secured by him during the summer- vacation, only in routine and without a hearing or examination of merit of the revision petition. Now, after duly attending to all the circumstances, I have not found it possible to accede to the plea for adjournment which is, hence, declined.
2. Record of the execution petition has been perused and returned. Petitioner has claimed the attached buffalo and donkey-cart to belong to him but has not produced any receipt regarding their purchase in spite of a clear assertion with regard to their production made in the 3rd paragraph of the claim petition itself. On the petitioner's attention being called to this omission, he came out with the assertion that although he had given those receipts to his counsel, yet, he can secure new ones on the next date.
3. Facts hereof are that a decree for recovery of Rs, 13,600 was secured by the respondent Mst.
Sakina Bibi on 18-7-1987 against her one-time husband Muhammad, Zafar, a son of the petitioner, as the price of her dowry articles retained by him. The decree was sued out by her on 4-5-1988 to be executed by attachment and sale of listed articles whereof some only were claimed by the petitioning father to be belonging to him and not to the judgment debtor.
4. Learned executing Judge was not satisfied about the bona fides of the petitioner's claim for two reasons, namely, that the objector and judgment-debtor happened to be a father and son interse, living in one house and private receipts showing purchase of the attached movables were capable of being conveniently secured at any time from any one and still none had been produced alongwith the objection petition in spite of representation about their production made in the claim petition itself. Such are also the implications of the provision made in the new Rule 59 of Order XXI of the C.P.C. (as substituted by Ordinance II of 1972).
5. Thus, being not convinced about any truth being prima facie there in the claim, learned executing Judge fixed the next date for submission of reply to the claim petition and for also hearing of arguments which were addressed by the petitioner's counsel without demur or claiming any opportunity for production of evidence which may really not have cut any ice in absence of any receipt brought on the record at all perhaps because after the attachment there was not enough time available for such a purpose. In the absence even of any oral evidence in support of the objection petition, the same was rejected on 13-10-1988 by learned executing Judge.
6. Petitioner took an appeal thereagainst to the District Court wherein, despite the above-noted remiss of the objector before the executing Court, no specific plea was taken about non-providing of opportunity to adduce evidence and no receipt was produced even therewith in support of the claim. The appeal came up for hearing before a learned Additional District Judge who did not find any merit in it and, agreeing with the view held below, dismissed the appeal by upholding the impugned order by means of his judgment dated 11-7-1989.
7. He has now been led up to this Court to seek interference in exercise of revisional power but in the memo hereof there is not to be found any clear' assertion made about the ownership of the attached property vesting in the petitioner who has neither produced any receipt to support the claim made by him in the executing Court nor has he anywise tried to explain their non-production.
On the other hand, there is a false statement made in ground (c) to the effect that his title to a plot has been ignored in spite of unimpeachable evidence demonstrating his purchase of it by a sale- deed executed on 10-2-1982. There was no such evidence produced before either of the Courts below. The fact is that learned executing Judge made a specific provision in his order for the petitioner (claimant) being enabled to make a fresh petition with regard to residential plot on the basis of proof of its ownership. Petitioner clearly admitted it in ground 3 of his memo of appeal below that he has already availed himself of this concession and has filed a fresh petition with regard to the plot. All this not only falsifies the assertion thereabout made herein but also happens to be an unambiguous pointer to the fact that no evidence of any kind with regard to ownership of any of the attached properties was forthcoming with the petitioner at that stage and, in that situation, no illegality can be said to have been committed in not setting upon a roving inquiry about a matter which had not been made out even prima facie.
8. Be that as it may, I am not in any doubt about the objector having falsely set up claim to the attached cattle and cart on account only of his love for the judgment-debtor son and his spite for the separated daughter-in-law, the decree-holder.
9. For the reasons set out above, I do not find any error of law or jurisdiction to have been committed by the Courts below in repelling the petitioner's claim with regard to the attached property for substantiating whereof he ought to have produced sonic documentary evidence at the very first opportunity for being able to make out some case for inquiry but he did not do so and there did not arise any occasion for his claim being inquired into under Rule 58. Further, petitioner's preparedness to bring new receipts on the next date c renders him unworthy of being provided any aid by way of interference in the exercise of discretionary jurisdiction of revision because substantial justice between the parties has been aimed by the Courts below to be done in securing the money-decree of a destitute lady for being realized through the process of law. The revision petition has no substance and it is accordingly dismissed in limine.
10. It may, however, be mentioned that an order of stay of execution proceedings was passed on 1- 8-1989 in C.M. No, 3540/C-89 by my learned brother Mian Nazir Akhtar, J. As subject to notice in pursuance whereof Shaista Qaiser, Advocate has entered appearance for Mst. Sakina Bibi decree- holder respondent No,1 but the judgment-debtor respondent No,2 remained unrepresented.
However, with the dismissal as above of the revision petition even That interim order of stay gets vacated forthwith.