CH. IJAZ AHMAD, J. -- The brief facts out of which the present revision petition arises are that the petitioner purchased the land measuring 1 kanal situated in Khasra No. 185 vide registered sale- deed dated 31.5.1979 from one Muhammad Javaid. The land of the petitioner was acquired by the respondents. The petitioner approached the respondents for the allotment of the plot in question, the same was not accepted by the respondents on the grounds that the petitioner was not in awardee owner of the land in question and was also advised to approach the Land Acquisition Collector, Lahore. The petitioner approached the Land Acquisition Collector through an application on 8.6.1992 for the withdrawal of the notice dated 7.7.1988 and for the allotment of the plot in question. The petitioner being aggrieved filed a suit for declaration. The respondents filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties the learned Trial Court framed the following issues:--
(i) Whether this Court lacks jurisdiction to try this suit? OPD
(ii) whether the plaintiff lacks cause of action and locus standi to file this suit? OPD
(iii) Whether the suit is improperly valued for the purposes of Court-fee and jurisdiction, if so, what is its correct valuation? OPD
(iv) Whether the letter dated 7.7.1988 is against law and facts and, therefore, liable to be called and cancelled? OPP
(v) Relief.
The petitioner failed to produce her evidence and the learned Trial Court vide order dated 26.1.1995 closed the evidence of the petitioner and the suit was dismissed for non-prosecution under Order 17, Rule 3, C.P.C. The petitioner being aggrieved filed appeal before the Addl. District Judge, Lahore who dismissed the same vide judgment and decree dated 6.9.2001, hence, the present revision petition.
The learned counsel of the petitioner submits that the Trial Court as well as the first Appellate Court were erred in law to non-suit the petitioner on technical grounds, therefore, judgments of both the Courts below are not in accordance with the law laid down by the Honourable Superior Courts. In support of his contention, he relied upon the following judgments:-- lmtiaz Ahmad Vs. Ghulam Ali, etc. (PLD 1963 S.C. 382) Lt. Col. Mohsin Shah Vs. Mst. Qaseema Wahid (PLD 1995 Lahore 385) Manager Jammu & Kashmir State Property in Pakistan Vs. Khuda Yar and another (PLD 1975 S.C. 678) He further submits that there was no sufficient material on the record to dismiss the suit of the petitioner, therefore, same is not in accordance with the law laid down by the superior Courts. In support of his contentions, he relied upon the following judgments:-- Rahim Bux and 2 others v. Mst. Nazir Khanum (1980 CLC 595) He further submits that there are five issues framed by the learned Trial Court out of which onus of issues Nos. 2 and 3 was on the respondents/defendants but without adverting to the aforesaid issues the suit of the petitioner was dismissed by the Trial Court, therefore, same is not sustainable in the eyes of law. In support of his contention he relied upon the case of "N. W.F.P. and 2 others Vs. Dr. lnayatullah Khan and 2 others"
(1990 CLC 1293). He further submits that respondents/defendants admitted the claim of the petitioner in written statement as is evident from para 1 of the written statement filed by the respondents/defendants before the Trial Court but the learned Trial Court at the time of dismissing the suit of the petitioner/plaintiff did not consider the reply of the respondents/defendants, therefore, the judgments of both the Courts below are result of misreading and non-reading of the evidence on record.
3. The learned counsel of the respondents submits that six opportunities were granted to the petitioner to produce the evidence but the petitioner failed to produce the evidence. The petitioner was negligent and wants to get the benefit of his own misdeeds which is not permissible in the eyes of law. He further submits that judgments of both the Courts below are in accordance with law laid down by the superior Courts. In support of his contentions, he relied upon the following judgments:- Siraj Din Vs. L.D.A. and 2 others (PLJ 1992 Lahore 109) Messrs lqbal Ghafoor Engineering Works Vs. Mst.Ghafoor Begum Soofi and others (1992 CLC 820) Muhammad Khalid Vs. Sharifan Bibi and 4 others (1993 CLC 1325)
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
5. It is better and appropriate to reproduce the operative part of the judgment of the first Appellate Court:- "I have given my anxious view to the arguments advanced by the learned counsel for parties and perused the record carefully. Bare reading of the record would show that a number of opportunities after framing of issues and fixing for evidence of plaintiff i.e. dates such as 28.5.1994, 10.7.1994, 11.10.1994, 7.11.1994, 18.12.1994, 26.1.1995 were provided to the appellant on request of her counsel/Advocate but she failed to produce her evidence even on single date nor she herself appeared in person as her own witness. On 26.1.1995 as it was a final opportunity so the learned Trial Court was constrained to close her evidence in accordance with law. As far as her contention that on 26.1.1995 an adjournment was sought for calling original record pertaining to Land Acquisition Collector is concerned, perusal of order dated 26.1.1995 passed on the back of application filed, reveals that order of dismissal was passed after disposal of main suit. Moreover if the requisite record was so essential for disposal of matter the same should have been called or the very day when the suit was firstly fixed for evidence of the plaintiff. Perusal of list of reliance filed by plaintiff on 22.5.1994 reveals that no reliance was placed on the above-said record. Under the given circumstances, I see no illegality or material irregularity committed by the learned Trial Court while closing the evidence of the appellant. The conduct of the appellant appears to be negligent and contumacious, hence the appeal without substance is hereby dismissed. Parties are left to bear their own costs. File of appeal be consigned to record room, after its completion."
The aforesaid operative part of the judgment of the first Appellate Court reveals that petitioner/plaintiff was allowed enough time and opportunity for adducing evidence but she failed.
After all, there must be limit to number of adjournments to a defaulting litigant and the Court should not be at his mercy to be trifled with impunity. Having gained time as a last opportunity, the plaintiff/petitioner not only defaulted in producing the evidence but failed to appear also. There was no justificaton for the adoption of non-cooperative attitude. Therefore, a just occasion existed for application of Order XVII, Rule 3 of C.P.C. for closing plaintiff/petitioner's evidence. The aforesaid proposition of law has been considered by the Honourable Supreme Court in the case of Executive Engineer, Peshawar Vs. Messrs Tour Muhammad and Sons and 4 others (1983 SCMR 619). The relevant observation is as follows:- "This rule applies where a party who is granted time to perform some act, not only fails to do so but is also absent on the date of which the hearing is adjourned. It is immaterial whether the adjournment was granted at the instance of the party or for other reasons. Where a defendant does not appear at an adjourned hearing, this rule applies irrespective of whether he appeared at the first hearing or not and the Court has to exercise its discretion; its hands are not tied by the previous ex parte order."
It is pertinent to mention here that judgment of the Honourable Supreme Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution, therefore, same is binding and shall prevail. It covered the case of double default for the application of Order XVII, Rule 3 of C.P.C. Be that as it may, petitioner/plaintiff was allowed sufficient time and opportunity in adjournments but she failed to avail and utilize the time properly upon this view to the matter, it shall not be equitable to interfere and allow further indulgence to the defaulter plaintiff. In arriving to this conclusion I am fortified by the following judgments:- Maulvi Abdul Aziz Khan Vs. Mst. Shah Jahan Begum and 2 others (PLD 1971 S.C. 434) Siraj Din Vs. Lahore Development Authority and 2 others (PLJ 1992 Lahore 109) Messrs lqbal Ghafoor Engineering Works Vs. Mst. Ghafoor Begum Soofi and others (1992 CLC 820) The judgments cited by the learned counsel of the petitioner are distinguished on facts and law. The order sheet of the Trial Court clearly reveals that petitioner did not vigilant to pursue the matters. Issues were framed by the Trial Court on 22.3.1994. The petitioner/plaintiff failed to produce her evidence and she herself did not appear in the witness- box. The Trial Court granted the last opportunity to produce evidence to the petitioner vide order dated 18.12.1994 and the case was adjourned for 26.1.1995. The petitioner/plaintiff failed even to appear before the witness-box on the said date. In such circumstances, the Trial Court has no other option except to invoke the penal provision of law against the petitioner.
In view of what has been discussed above, the revision petition has no merits, the same is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.