SYED ZAWWAR HUSSAIN JAFFERI, J.--- This civil revision application is directed against the judgment dated 22 5.2002 and decree dated 26.5.2003 passed by the learned Vth Additional District Judge, Larkana, whereby the Civil Appeal No. 134 of 2002 filed by the applicant was dismissed whereby the judgment and decree dated 21.10.2001 passed by the learned 1st Senior Civil Judge, Larkana dismissing the F.C. Suit No. 27 of 1999 by an order under 0. XVII, Rule 3, CPC was upheld.
2. The facts of the case are that the applicant/plaintiff filed suit No. 77 of 1999 for Specific Performance of contract and injunction against the respondents, alleging that S. No. 473 (l-ll), S. No. 477 (2-02) from which the area 0-21 ghuntas total area (132) acres, deh Waggan, Taluka Warah originally belonged to one Ghulam Rasool, who sold the same to the applicant/plaintiff by agreement of sale dated 5.5.1952 for consideration of Rs. 7,200/- and after receiving full consideration, handed over possession of the land to the applicant/plaintiff. It is stated in the plaint that the said Ghulam Rasool died and the respondents claimed to be the legal heirs of Ghulam Rasool and kept the applicant on false hopes, to get the revenue record mutated in favour of applicant by executing registered sale-deed. It is stated that on 15.12.1998 the respondents refused to execute the sale, but they tried to dispossess the applicant through official respondents and the applicant being helpless filed F.C. Suit No. 27/1999 for specific performance of contract and injunction.
3. The respondent No. 3 A.I Gohar contested the suit and written statement was filed, but the other respondents did not pursue and remained absent and an order was passed against them for proceeding of the suit as ex parte.
4. The Trial Court framed the issues on 18.2.2002 and on 17.10.2002 the matter was fixed for evidence, but applicant failed to appear in the Court and sent message about his ailment by filing an adjournment application, but the applicant was rejected on the ground that there is no cogent reason and the Trial Court dismissed the suit under Order XVII, Rule 3, CPC. The impugned order was challenged before the Appellate Court being Civil Appeal No. 3.4 of 2002. The above appeal was heard and decided by the learned Vth Additional District Judge, Larkana and during the proceedings of the appeal, respondent No. 3 (Aligohar) reported to have died long back during the pendency of the suit, but no such intimation was given to the Trial Court. However, the legal heirs of All Gohar was joined by the Appellate Court as respondents Nos. 3-A to 3-C. Thereafter the learned, Vth Additional District Judge, Larkana dismissed the appeal as per judgment and decree dated 26.5.2002, hence this - revision application.
5. It is contended by the learned counsel for the applicant that the impugned judgment and decree are suffering from patent illegalities, material illegalities' and lack of jurisdiction and the provisions of Order XVII, Rule 3, CPC are penal in nature and the absence of petitioner on 17.10.2002 was on the ground of sickness and there is no cogent ground for absence of the petitioner/plaintiff.
The defendant No. 3 was also expired on 17.10.2002 and the Trial Court has erroneously observed that the petitioner was given final last chance. It is further urged by the learned counsel that both the Courts below have not exercised the jurisdiction properly and dismiss the suit and appeal and the impugned judgments are liable to be set aside'. Mr. Ghulam Sarwar Abbasi learned counsel for the applicant has relied upon the case of Industrial Sales and Service v. Archifar Opal Laboratories Ltd. (PLD 1969 Kar. 418) as the Order XVII, Rule 3, CPC is, in its . Nature and a penal provision. That provision can be pressed into service for deciding the suit finally on merits, on the proof of default of some party. Mr. Abbasi has also relied upon the case of Sultan v. Yara (1995 M LD 1078) and the case of Syed Tasleem Ahmad Shah v. Sajawal Khan (1985 SCM R 585).
6, The respondents Nos. 1 to 7 have filed written arguments ; as they are unable to engage an Advocate. It is contended by them that late Ghulam Rasool died in the year 1950 as the deceased was Pesh Imam and was educated person and the applicant with mala fide intention prepared false and fabricated agreement dated 5.5.1952 in order to usurp the land of the respondents. The respondents have challenged the genuineness of the sale agreement, as the deceased Ghulam Rasool died in the year 1950 and how it is possible that the said deceased put LTI on the alleged agreement dated 5:5.1952. The respondents have also prayed that the judgments and decrees passed by the two Courts below are based on proper appreciation of law, as the petitioner/plaintiff failed to lead any evidence on so many dates of hearing and deliberately dragging the matter without bringing any material on record in the shape of evidence.
7. Mr. Muhammad Bachal Tonyo, learned Addl. A.G. Has also supported the impugned judgments and decrees passed by the two Courts below.
8. I have considered the arguments of the learned counsel for the applicant and points raised by the respondents in the written arguments. I have also examined the judgments and decrees of two Courts below.
9. From the perusal of the judgment, it is obvious that the Trial Court. Framed the issues on 18.2.2002 and matter was adjourned to 18.3.2002 for recording of the evidence. The counsel for the applicant/plaintiff moved adjournment application on the ground of ailment of son of the applicant/plaintiff and matter was adjourned to 9.4.2002. On that date learned counsel for the applicant moved adjournment application and consequently the matter was adjourned to 4.5.2002. On that date the learned counsel for the applicant/plaintiff again moved adjournment application on the ground of ailment of applicant/plaintiff, which was granted and matter was adjourned to 3.6.2002. On that day, learned counsel for the applicant/plaintiff also sought adjournment and the same was too granted and matter was adjourned to 22.8.2002. On that date the applicant/plaintiff filed an adjournment application and matter was adjourned to 16.9.2002. On that date learned counsel for the applicant/plaintiff sought adjournment on the ground that he is busy before High Court and adjournment was granted and matter was adjourned to 17.10.2002. On 17.10.2002 the adjournment was sought due to non-appearance of the applicant/plaintiff due to ailment, but the adjournment application was rejected and the Trial Court proceeded with the case and passed an order under XVII, Rule 3, CPC, as the applicant/plaintiff sought(s) eight adjournments continuously as mentioned above. It is settled principle of law that the law favours decision on merits rather then on technicalities unless. The party is guilty of gross negligence. As per case diaries, it is manifest that the applicant/plaintiff remained negligent and adopted careless attitude to proceed with the matter. He himself failed to lead his own evidence. It is settled principle of law that the law helps to the vigilant not too indolent. According to the record, after framing of the issues, the applicant and his witnesses failed to lead evidence, but the applicant/plaintiff moved application for seeking adjournments. The case-law cited by Mr. Abbasi is based on the principle' that adjournment sought by the defendant through counsel after getting no objection by the plaintiff would not amount to granting time to defendant at his request and Court was not justified to invoke provision of Order XVII, Rule 3, CPC for closing defendant's evidence. The evidence of the plaintiff was recorded, but in this case the evidence of plaintiff was not led, but the applicant/plaintiff failed to produce his own evidence or produce any document in support of his pleas. The provision of Order XVII, Rule 3, CPC had directly come-up for consideration and .After re-appraising the rule, the law was initiating in the following words:- 'It will be seen that this rule applies to a case where time has been granted to a party at his instance to produce evidence or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted."
10. It is manifest that in the particular case before me, find that eight adjournments sure sought by the petitioner /plaintiff and the defendants are contesting the case on the genuineness of the sale agreement. The petitioner/plaintiff has failed to lead the evidence despite of several chances and due to the conduct of the petitioner/plaintiff, the Trial Court was left no option to decide the case under Order XVII, Rule 3, CPC as the applicant/plaintiff continuously moved the adjournment application on flimsy grounds and dragged the matter since 18.3.2002. The other case-law cited by the learned counsel for the petitioner is based on different facts and grounds, as the matter was disposed of by the Trial Court for non-appearance of the petitioner and his witnesses before 9 a.m.
When the case called by the learned Trial Judge and due to Court timing were changed which started from 7.30 a.m. Instead of 9 a.m. And it was agitated by the petitioner that he had no notice of changed Court timings, therefore, he appeared in Court at 9 a.m. In the other case-law cited as PLD 1969 Kar. 418, it has been held that the judgment in relation to letters patent appeals within the meaning of judgment in Clause 10, as it depends on facts and circumstances of each case and Criteria to be kept in view of considering facts and circumstances and . Order of Court for closing the evidence of a party are to be termed as judgment as contemplated by Cl. 10 of Letters Patent (Lahore). It is an admitted position that Order XVII, Rule 3, CPC is, in its nature and a penal provision.
That provision can be pressed into service for deciding the suit finally on merits and some of the conditions to be satisfied before passing an order under that provision are it the conditions of this rule are satisfied, then only the Court can proceed to decide the suit. Admittedly the petitioner/plaintiff availed several dates of hearings to adduce the evidence, but on the contrary he obtained adjournments on formal grounds so as to drag the matter for indefinite period. The petitioner/plaintiff has failed to adduce his - own evidence. In my view the conditions of Rule 3 of Order XVII have been satisfied in this case by the Trial Court. The Trial Court adjourned the case from time to time, but the petitioner/plaintiff after closing all the doors for production of evidence and failed to examine himself also. In the similar circumstances the Hon'ble Apex Court has laid down a rule in case of Shahid Hussain v. Muhammad Akram (2000 SCM R 1135). In this authority it is dilated that failure to produce evidence on final date and closure of the, evidence by the Trial Court, and the Trial Court has rightly closed the evidence and the order was unexceptionable, in the circumstances. The Hon'ble Supreme Court of Pakistan has held that the order of closure of the evidence was quite right. The Trial Court despite various opportunities were extended to the petitioner/plaintiff, but he failed to produce his evidence, which was eventually closed on 17.10.2002 and eight adjournments were granted on formal grounds and the learned Trial Judge was justified to proceed with the case by deciding the case under Order XVII, Rule 3, CPC. It is settled principle of law that the law favours decision on merits rather then on technicalities unless the party is guilt of gross negligence. In the present case petitioner/plaintiff was seems to be negligent and careless and it is also well-settled law that law helps to the vigilant not to indolent. After framing of the issues, the petitioner/plaintiff failed to adduce his evidence, but on the contrary he sought adjournments continuously and failed to produce any evidence, therefore, the closing the. Side of the applicant/plaintiff for. The purpose of evidence was in accordance with law, as several opportunities were offered for producing of the evidence. The judgments and decrees passed by the two Courts below. Do not after from illegality, therefore, the same are maintained. The discretion vested in the Court has been appropriately exercised by the Court in accordance with law in view of the facts and circumstances of the case.
Resultantly, the civil revision application is dismissed at this stage alongwith pending applications. .