' By means of this judgment C.R. No, 1889-D of 1983 Muhammad Salim etc. v. L.DA. etc. and C.R. No, 1890-D of 1983 Ch. Muhammad Salim etc. v. L.DA shall be decided together as common questions of law and facts arise in these matters.
2. The necessary facts are that Muhammad Salim and four others instituted a suit for permanent injunction against the respondent, L.DA. and others restraining them from interfering in their ownership and possession of the suit land before the learned Civil Judge, Lahore. It was mentioned in the suit that their land and other properties, namely, an orchard and houses could not be acquired by the respondent No, 1, L.DA. The learned Civil Judge issued notices to the respondents and consequently the respondents appeared before the Court to contest the proceedings. The contesting respondents filed written statement. On the divergent pleadings, as many as five issues were framed by the learned Civil Judge. The case was fixed for recording evidence of the petitioners/plaintiffs on 14-6-1982. On the date, no evidence could be produced by the petitioners and as such the case was adjourned to 11-10-1982 with a cost of Rs,
15. On 11-10-1982, the case was again adjourned to 3-1-1983 for production of evidence by the petitioners on payment of a cost of Rs,
20. The petitioners/plaintiffs failed to produce their evidence on the said date and the learned trial Judge closed their evidence under Order XVII, Rule 3, C.P.C. and in consequence thereof decided the case against them. The appeal of the petitioners was dismissed by the learned Additional District Judge on 6-12-1983 holding that the petitioners failed to produce their evidence on the date fixed.
3. It is contended forcefully by the learned counsel that there was no legal justification with the learned trial Judge to dismiss their suit at such a short interval. According to him a sufficient cause was shown for the adjournment of the case. He argues that the sufficient cause was not at all taken into consideration by the learned Courts below. Learned counsel appearing on behalf of the Lahore Development Authority opposes the revision petitions. He states that there is no justification to interfere in the concurrent finding of fact having been arrived at by the Courts below. He maintains that no jurisdictional defect or illegality could be pointed out by the learned counsel in the impugned judgments. He goes on to say that the case was adjourned from date to date at the request of the learned counsel. According to him the petitioners were guilty of default and as such penal provisions were rightly followed by the learned Courts below to meet the ends of justice.
Despite sufficient time having been given to the petitioners, they failed to produce their evidence and as such the case was prolonged on account of their non-cooperation. According to learned counsel, a finding of fact has been given by the Courts below and as such it cannot be interfered with in these proceedings. Learned counsel has relied upon Iftikharud Din v. Mim Shin 1990 A L D 589(2) and the Province of the Punjab v. Syed Sibte Hassan 1991 MLD 466 in support of his plea.
4. I have heard the learned counsel for the parties at considerable length and have gone through the record carefully. The record shows that the civil suit was instituted on 20-4-1981 and in response to the notice, the contesting respondents appeared before the Court on 20-6-1981. The case was adjourned from 20-6-1991 to other dates, -namely 22-7-1981, 8-9-1981, 14-9-1981 to enable the respondents to file their written statement. It is evident from the above background that the respondents themselves took a lot of time in filing the written statement. They are also responsible for the delay, if any, in the disposal of the suit. In my view, learned counsel was able to show a sufficient cause for not producing the evidence before the Court on the date fixed. The plea was supported by an affidavit that the learned counsel was busy in his competitive examination and as such could not appear to lead the evidence on the date fixed. This plea was undoubtedly mentioned in the impugned order dated 3-1-1983 but the learned Judge did not consider whether or not the assertion of the learned counsel that he would be busy in the competitive examination on the date fixed was a sufficient cause for adjournment of the case. A substantial error therefore, appears to have been committed by the Courts below, inasmuch as they did not at all advert to this aspect of the case while deciding the controversy. It is well-settled that an appeal is the continuation of the suit and that the whole case of the parties stands reopened before the appellate forum. Needless to observe that the Courts have been established to do justice between the parties in accordance with law. The learned trial Judge gave several dates to the respondents to enable them to file the written statement as detailed above. Likewise, the petitioners were also required to be accommodated by giving them another date to enable them to produce the evidence. This has not been done by the Courts below for unknown reasons. It is therefore, held that the learned Courts below dismissed the suit of the petitioners without providing them an opportunity to produce their evidence without any legal justification. It was not just and fair for the trial Court to close the case of the petitioners on the third date fixed in the case. This, of course, resulted in injustice to the petitioners. It is also evident that the cause for non-production of evidence was not disputed by the respondents in the pleadings. This being so, the petitioners were entitled to the adjournment of the case to lead their evidence on the next date. A valuable right of the petitioners is involved in the suits which cannot be allowed to be defeated in law on a mere technical point. It is well settled that the Courts are to avoid technicalities in deciding the disputes between the parties on their merits. In these circumstances. Mr. Raza Mohsan Qazilbash, learned counsel for the respondents came out and states that he would not oppose the acceptance of the revision petitions.
5. The result of the above discussion is that the impugned judgments and decrees dated 3-1-1983 and 6-124983 passed by the Courts below are set aside being illegal and without lawful authority.
Both the suits of the petitioners, in consequence, shall be deemed to be pending before the learned Civil Judge. He shall decide the suits after giving an opportunity to the parties to produce their evidence within next six months. The petitioners shall produce their evidence subject to the payment of a sum of Rs,1,000 (Rupees one thousand) as costs each to the learned counsel appearing on behalf of the contesting respondents. Accordingly, both the civil revisions succeed and are allowed.