' The facts leading to the institution of the instant revision petition are that the petitioner instituted a suit for the recovery of Rs,61,000 as arrears of. Rent outstanding against the respondents/defendants. The issues in the suit were framed on 17-6-1992 and the petitioner/plaintiff called upon to produce his evidence in support of the case. The petitioner/plaintiff concluded his evidence on 17-5-1995 whereafter the suit was fixed for the evidence of the respondents/defendants on 15-6-1995. It was adjourned to 16-7-1995, 18-9-1995 and then to 17-10-1995, on which date only the statement of the respondent/defendant was recorded. Learned counsel for the plaintiff though present in the Court sought time to cross- examine the defendant. The case on his request was adjourned to 26-10-1995, on which date, the petitioner/plaintiff moved a miscellaneous application to the effect that he respondents/defendants be directed to affix requisite court-fee on the set off claimed by them. The said application was accepted by the learned trial Court on 26-10-1995 and the respondents/defendants were directed to pay the requisite Court fee on the set off by or before 16- 11-1995. On the failure of the respondents/defendants to pay the requisite court-fee, the time was extended up to 13-12-1995. As however, the defendants/respondents had not complied with the order directing them to pay the Court fee on the claim of set-off their said claim was rejected whereupon the case was adjourned to 19-12-1995 for the evidence of the respondents/defendants.
This, thus, was the first date which was fixed for the evidence of the respondents/defendants by the trial Court. This date was not the one which was fixed on the request or at the instance of the respondents/ defendants. However, on their failure to produce the evidence on this date, learned trial Court pressed into service the provisions of Order 17, Rule 3, C.P.C. And closed their evidence.
Thereafter, he proceeded to decree the suit of the petitioner/plaintiff on merits on 11-1-1996. It was against this judgment and decree passed on this date that the respondents/defendants preferred an appeal before the District Judge which in due course of time was entrusted to Ch.Muhammad Iqbal Naru, learned Additional District Judge, Rawalpindi, who accepted the same on 11-11-1996 and remanded the case to the learned trial Court. It is against this remand order of the learned Additional District Judge that the petitioner/plaintiff has come up in revision before this Court.
2. This revision petition came up for hearing before this Court on 20-6-1997 when I had directed the pre-admission notice to issue to the respondents for today. Pursuant to the said pre-admission notice, Mr. Muhammad Ilyas Sheikh, Advocate has put in appearance on behalf of the respondents/defendants.
3. I have gone through the entire record of the case with the help of the learned counsel for the parties and also examined the order of the learned trial Court dated 19-12-1995 whereby the evidence of the respondents/defendants was closed by the learned trial Court under Order 17, rule 3, C.P.C. In order to attract the applicability of the said provisions of C.P.C., the adjourned date has to be on the request and at the instance of the party in default. In this case, 19-12-1995 was not the date which was fixed on the request or at the instance of the respondents/defendants. When the adjournment was not at the request of the party in default, this rule is inapplicable. Reliance for this view which I have taken is placed on PLD 1991 SC 1109, 1992 CLC 1241, 1992 CLC 760 and PLD 1987 Lahore 157.
4. In order to penalize a party so as to close its evidence, resort can be made to the provisions of Order 17, Rule 3, C.P.C. If the party contumaciously fails to produce its witnesses. Reference in this behalf is made to 1993 CLC 1359, 1993 CLC 1325, 1992 CLC 102, PLD 1992 Lahore 355, 1992 ALD 672 and 1990 ALD 400. The record of the learned trial Court which I have closely scrutinized did not warrant the closure of the respondents/defendants' evidence under the aforestated provisions of law. The learned trial Court was therefore, not right for pressing into service Order 17, Rule 3, C.P.C. The learned Additional Sessions Judge, Rawalpindi therefore, in my view committed no illegality in accepting the appeal preferred against the said order of the learned trial Court and in remanding the case to the said Court. There is no force in this revision petition which is dismissed in limine.
However, since the learned counsel for the respondents/defendants is present in the Court and this case has already been under hearing before the learned trial Court for quite sometime, it would be in the interest of justice if the parties are put to terms with regard to the proceedings to be recorded by the learned trial Court hereafter. I, therefore, direct that the parties shall appear before the learned trial Court on 10th of July, 1997 whereafter the said Court shall fix the case for the evidence of the respondents/defendants but shall in no case grant them more than two adjournments for the said purpose and thereafter decide the case on merits. With these observations, this revision petition is disposed of.