Munawar Khan instituted Suit bearing No.243/1 of 1993 on 30-5-1993 against Irshad A.I and his brother Niaz A.I, to enforce his right of pre-emption in respect of 79/512 share in suit-land represented by Khasra No. 180 measuring 19 Kanals, 9 Marlas situated in the area of Mauza Bada -- Rass District Haripur, shown to have been purchased by Irshad A.I etc. On the basis of sale Mutation No. 1332 attested on 4-2-1993. The plaint was subsequently amended in the light of the judgment of this Court regarding "Talabs". Amended plaint was submitted on 15-8-1996. The suit was resisted and the superior right of pre-emption of Munawar Khan respondent herein, was disputed by Irshad A.I etc. Petitioners herein. After formulating issues and inviting list of witnesses, the suit was fixed for evidence of the plaintiff-- respondent regarding "Talabs". A perusal of the order-sheets maintained by the trial Court would reveal that partial evidence of the plaintiff-respondent was recorded but his complete evidence could not be recorded for one reason or the other and ultimately by order, dated 13-3-1999, the evidence of the plaintiff-respondent was closed under Order 17, Rule 3, C.P.C.
This order was successfully challenged in appeal before Additional District Judge, Haripur. The appeal was accepted by order, dated 14-1-2000 and the impugned order was set aside on payment of Rs.500 as costs with direction to the lower Court to examine Khyber Zaman, one of the witnesses to the notice of "Talab-e-Ishhad".
2. Irshad A.I and his brother Niaz A.I, feeling aggrieved have filed instant revision petition under section 115, C.P.C. Assailing the order, dated 14-1-2000. Passed by Additional District Judge, Haripur with a prayer that orders, dated 27-2-1999 and 13-3-1999 of the trial Court be restored.
3. Mr. Mushtaq A.I Tahir Kheli, Advocate for the petitioner contended, inter alia, that the material on record has not been taken into account by the first appellate Court and order of the trial Court, dated 13-3-1999 has been set aside without any justifiable reason and in total disregard to the previous conduct of the plaintiff-respondent, which has materially prejudiced the rights of the defendants-petitioners. The learned counsel invited my attention to the order sheets maintained by the trial Court and made an attempt to show that the plaintiff-respondent was not at all interested in finalization of the suit filed by him and as such the first appellate Court had no justification to show him indulgence and allow him to examine Khyber Zaman one of the witnesses of the notice "Talab-e-Ishhad". In support of the submissions, he placed reliance on Allah Ditta and others v. Hafiz Zaheer Ahmad and another 1993 CLC 1359; Siraj Din v. Lahore Development Authority and others 1992 CLC 102 (Lahore); Muhammad Bakhsh and 4 others v. Province of Punjab and 2 others 1994 SCM R 1836; Shaukat Nawaz v. Mansab Dar and another 1988 SCM R 851; Sabir A.I v.
Muhammad Mansha and others 1998 M LD 2068 (Lahore) and Muhammad Ishaq and others v.
Fazal Sher and another 1988 SCM R 853.
4. On the contrary Mr. Muhammad Ismail Tanoli, Advocate for the respondent contended that conduct of the respondent is clearly indicative of the fact that he was in a mood to ensure quick disposal of his suit; that most of the adjournments were granted at the request of the petitioners and that the learned Civil Judge, seized of the matter, had no justifiable reason to resort to the provisions of Order 17, Rule 3, C.P.C. And close the remaining evidence of the plaintiff-respondent.
He supported the order of the first appellate Court announced on 14-1-2000 and prayed for its sustenance. To substantiate the pleas reliance was placed on S. Tasleem Ahmad Shah v. Sajawal Khan and others 1985 SCM R 585; Zahoor Ahmad v. Mehra and others 1999 SCM R 105; Sheikh Abdul Aziz v. Bashir Ahmad 1989 CLC 103; Wali Ahmad v. Collector, Land Acquisition and others 1985 SCM R 224; Pakistan Burma Shell Ltd. v. Tariq Brothers 1997 CLC 761 (Lahore) and Riasat A.I and 3 others v.
Chaudhry Muhammad Mushtaq Ahmad Sindhu and 2 others 1999 CLC 1195 (Lahore).
5. After hearing the arguments of learned counsel for the parties with reference to the material on record, and the case-law cited at the bar I find myself in agreement with learned counsel for the respondent that most of the adjournments had been granted by the trial Court at the instance of the counsel for the petitioner and as such the respondents cannot be held responsible and guilty of prolonging the suit. A perusal of the order sheets of the trial Court clearly reveal that on a number of occasions learned counsel for the petitioner was not available on account of which the learned trial Judge was left with no option but to adjourn the case. Partial evidence of the plaintiff- respondent was recorded without loss of time but the remaining evidence, i.e. Statements of Ghulam Farid and Khyber. Zaman, witnesses of the notice of "Talab-e-Ishhad", could not be recorded in view of the mentioned witnesses having gone abroad in connection with labour. In this view of the matter the learned trial Judge was not justified to resort to penal provisions of Order 17, Rule 3, C.P.C. And close the remaining evidence of the plaintiff-respondent. It is submitted by learned counsel for the petitioner that the impugned order of first appellate Court suffers from misreading, non-reading and non-evaluation of material on record and hence it is not sustainable.
The submission of the learned counsel has not impressed me. On my query the learned counsel has not been able to point out any misreading or non-reading of material on record.
6. The jurisdiction under section 115, C.P.C. Is discretionary and the Court will not interfere under the aforesaid provision of law to correct every irregularity in the exercise of jurisdiction but only where grave injustice or hardship will result on account of the non-interference. Section 115, C.P.C. Applies only to cases involving the illegal assumption, non-exercise or the irregular exercise of jurisdiction.
It cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of the Court, no matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction. If a Court has jurisdiction it has jurisdiction to decide one way or the other and erroneous conclusion of law or fact can be corrected accordingly it is not denied that the Courts are hesitant to interfere in revision if the order is just and proper though some irregularities may have been committed in the making of it. It also needs no reiteration that the Court will also not interfere where substantial justice has been done between the parties and where the petitioner has taken shelter behind technicalities or where the discretion has been exercised properly. In the instant case I find that complete justice has been done and the discretion does not appear to have been exercised capriciously or arbitrarily in allowing the respondent to examine one of its witness namely Khyber Zaman. The impugned order seems to have been passed in wake of safe administration of justice.
It goes without saying that penal provisions can only be invoked if the delinquent party is guilty of contumacy and obduracy. In this case, the plaintiff --respondent cannot be held guilty of contumacy and obduracy. I may pause here to mention at the cost of repetition that some of the adjournments were subjected to payment of costs and some treated as final opportunity and most of the adjournments were granted in view of the departure abroad of learned counsel for the defendant-petitioners.
7. In view of what has gone above it follows that the impugned order is unexceptional and I do not feel inclined to interfere with it in revisional jurisdiction of this Court. The case-law produced on behalf of the petitioner proceeds on different facts and has no bearing on the point in issue. The revision petition fails which is hereby dismissed. The parties are left to bear their own costs.