The brief facts out of which the present revision petition arises are that the respondents filed a suit for declaration with consequential relief of permanent injunction against the petitioners before the Civil Judge 1st Class, Lahore on 17-1-1984. The petitioners/defendants filed written statement and controverted the allegations levelled in the plaint. Out of pleadings of the parties the learned trial Court framed the following issues:--
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the plaintiff has no cause of action and locus standi for the present suit? OPD
(3) Whether the Court has no jurisdiction to try this suit? OPD
(4) Whether notice dated 5-12-1983 is illegal, mala fide and without lawful authority? OPP
(5) Relief.
The trial Court closed the evidence of the petitioner on 11-2-1996 and subsequently decreed the suit vide judgment and decree dated 20-3-1996. The petitioners being aggrieved filed appeal before the Additional District Judge, Lahore who dismissed the same vide judgment and decree dated 22- 5-2001. Hence this petition.
2. Learned counsel of the petitioners submits that before closing the evidence of the petitioner by the trial Court on 11-2-1996 the respondents/plaintiffs filed an application under Order 1, rule 10, C.P.C. For impleading other legal heirs which was accepted by the trial Court on 8-3-1995. The respondents/plaintiffs did not file amended plaint. Therefore, trial Court erred in law to close the evidence of the petitioners. He further submits that First Appellate Court upheld the judgment of the trial Court without applying its independent mind as is evident from para.6 of the impugned judgment.
3. Learned counsel of the respondent submits that several opportunities were given to the petitioners for producing evidence. The petitioners themselves did not produce the evidence.
Therefore, both the Courts below were justified to close the evidence of the petitioners. He further submits that both the Courts below have given concurrent finding of fact against the petitioners.
Therefore, revision petition is liable to be dismissed. He further submits that scope of interference by this Court while exercising power under section 115, C.P.C. Is very limited.
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 impugned judgment of the First Appellate Court to resolve the controversy between the parties:- "6. At the perusal of the record although there are discrepancies but the appellant was given sufficient time to produce evidence but he failed to produce the same for one reason or the other either because of signatures or non-presence of their counsel. Although the appellant is Government Organization but according to the superior Courts that be considered as individual and such acts on the part of any party does not allow relaxation to enjoy. Besides both the parties have already gone through one round of litigation on this very question in dispute. The same had not been challenged earlier. Therefore, in the light of above discussion, the appeal is devoid of any force, and the same is hereby dismissed, leaving the parties to bear their own costs."
The aforesaid operative part clearly reveals that First Appellate Court passed the impugned order without applying its independent mind. In fact the First Appellate Court countersigned the finding of the trial Court. The First Appellate Court mentioned the contentions of both the parties in paras.
Nos.3 and 4 of the impugned judgment but did not discuss the same in para. 6. It is settled principle of law that it is the duty and obligation of the Courts to decide the controversy between the parties with reasons as per principle laid down by the Honourable Supreme Court in Mollah Ejahar Ali v. Government of East Pakistan (PLD 1970 SCI 173). It is also settled principle of law that First Appellate Court has to apply its own independent mind and should not countersign the finding of the trial Court as per principle laid down by the Honourable Supreme Court in Ghulam Mohy-ud- Din v. Chief Settlement Commissioner (PLD 1964 SC 829). It is admitted fact that respondents filed an application under Order 1, rule 10, C.P.C. Which was accepted by the trial Court vide order dated 8-3-1995 with the direction to the respondents/plaintiffs to file amended plaint. The respondents/plaintiffs did not file amended plaint till date. This fact was not considered by the First Appellate Court at the time of deciding the controversy between the parties as is evident from the aforesaid operative part of the impugned judgment or the First Appellate Court. It is the discretion of the trial Court to close evidence of the petitioners but at the same time if is settled principle of law that discretion is to be exercised judicially on relevant consideration in the light of attending facts and circumstances of each case and not whimsically or arbitrarily as per principle laid down in Muhammad Siddiq v. Syed Zulfiqar Haider (1995 CLC 431). It is also settled principle of law that Order XVII, rule 3, C.P.C. Is very. Drastic and penal, therefore, it should be used only in exceptional cases. In the present case respondent/plaintiff did not file amended plaint as directed by the Court, therefore, the question of closing the evidence of the petitioner/defendant does not arise even if the case was adjourned on the request of the petitioners/defendants for producing evidence. Therefore, it cannot be termed that case was adjourned on the request of the petitioner to produce evidence coupled with the fact that valuable rights of the parties are involved in the present case. In arriving to this conclusion I am fortified by the law laid down in Mst. Akbar Jan and others v. Imtiaz Qayyum Khan and other (1996 M LD 242) and Abdul Rashid and another v. Fazal Karim (NLR 1981 Appeal Cases 88).