' This civil revision assails judgments and decrees, dated 7-1-2003 and 17-2-2003 passed by the learned Civil Judge and learned Additional District Judge, Jhang, deciding lis against the petitioner respectively.
2. Precisely relevant facts are that petitioner filed a suit for possession through pre-emption against a sale effected through Mutation No,1144, dated 25-2-1998 for an amount of Rs,20,000.
According to petitioner she gained, knowledge of sale on 5-5-1998 through one Muhammad Saqlain Shah when she immediately exclaimed her intention to file pre-emption suit, as she was a "Shafi Sharik" of the land in question. She also pleaded in the plaint that by sending notice, attested by truthful witnesses, she performed Talb-e-Ishhad and thus, fulfilled the requirements of section 13 of the Punjab Pre-emption Act, 1991.
3. Respondent being a defendant in the suit, denied the version of the petitioner and claimed improvements over the property, before filing of suit, by filing a written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Suit kept on adjourning for evidence of the petitioner/plaintiff and ultimately her right to produce evidence was closed under Order XVII, rule 3, C.P.C. And suit was dismissed for lack of proof vide judgment and decree, dated 7-1-2003.
4. Petitioner aggrieved of the decision of the trial Court dated 7-1-2003 filed an appeal before the learned Additional District Judge, but remained unsuccessful, as the same was dismissed on 17-9- 2003. She thereafter filed instant revision petition which was admitted to regular hearing and has now been laid for final determination. Respondent is represented through his counsel.
5. Learned counsel for the petitioner submits that right of the petitioner to produce evidence has incorrectly been closed under the provisions of Order XVII, rule 3, C.P.C., which were not applicable at all. According to him, on the preceding date, the case was adjourned in routine thus, penal provisions of Order XVII, rule 3, C.P.C. Could not have been invoked against her. It has also been contended that there was nothing on the file to pronounce judgment in the suit, as such, the trial Court should have proceeded under rule 2 instead of rule 3 of Order XVII, C.P.C.
6. Learned counsel appearing on behalf of the respondent refuted the assertions of the petitioner, supported the judgments and decrees of the two Courts below and urged that petitioner was allowed at least 22 opportunities to produce evidence out of which on 13 occasions her evidence was not available. It has also been contended that petitioner did not furnish any reasonable cause for non-production of her evidence on the date on which her right to produce evidence was closed under Order XVII, rule 3, C.P.C. He further submits that the provisions invoked by the trial Court, being penal in nature had to be strictly construed and as the petitioner, who was required to produce evidence, failed to cause attendance of her witnesses, she was rightly proceeded against under the said provisions of law.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, there was absolutely no material on record, facilitating the trial Court for just decision of the case and in such an eventuality, it is desired by law that the case should have been adjourned on the request of the party penalized.
Reference in this behalf, can be made td the cases of Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296 and Government of N.-W.F.P. Through Secretary, C&W and others v.
Messrs Tahir Shoaib Rashid Shoaib 1998 CLC 1680. On the date, preceding the one, on which right of evidence of the petitioner was closed, was 28-10-2002 and the case was adjourned in routine without objection by the respondent though on account of sickness of the petitioner, yet without imposing any condition of final opportunity or subject to payment of any kind of costs. Such an adjournment cannot be termed as an adjournment on the request of the petitioner. It is settled proposition of law that where the case is not adjourned on the request of the party penalized, provisions of Order XVII, rule 3, C.P.C. Are not applicable. Provisions of rule 3 of Order ibid are permissive in nature and are discretionary, which should have been exercised on the basis of recognized principles known for administration of justice. Courts must lean towards decisions on merits instead of knocking out the parties on mere technicalities. Earlier to the date fixed for evidence of the petitioner i.e, 28-10-2002, on four occasions, the learned Presiding Officer was on leave and thus, a Presiding Officer, who was not available on four consecutive dates, cannot be said to have acted abruptly according to the principle laid down by superior Courts for doing justice between the parties. Be as it may, since adjournment of the case from 28-10-2002 to 7-1- 2003 was a routine adjournment and cannot be construed, as noted above, penal action against the petitioner was not justified. My this view is fortified by the judgments in the cases of Syed Tasleem Ahmad Shah v. Sajawal Khan and others 1985 SCMR 585, Haji Muhammad Ramzan Saifi v.
Mian Abdul Majid and others PLD 1986 SC 129, Qutab-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109, Muhammad Shafique v. Mst. Zahida Begum and others PLD 1995 Lah. 561, K.P.W. Factors (Pvt.) Ltd. v.
Shafqat Javed Cheema and others 1998 CLC 110, Pakistan Burmah Shell Ltd. v. Tariq Brothers 1997 CLC 761 and Muhammad Siddique v. Syed Zulfiqar Haider and others 1995 CLC 431.
8. There is no substance in the arguments of the learned counsel for the respondent whereunder it is submitted that petitioner out of 22 dates could not produce her evidence on 13 dates of hearing.
This controversy has been put to rest by the Honourable Supreme Court of Pakistan holding that previous defaults are not material and the only date relevant under Order XVII, rule 3, C.P.C. Is the preceding date which in the instant case is 28-10-2002, which for the foregoing reasons is a routine date and cannot be attributed to the petitioner. Likewise, contention of the respondent that the petitioner did not furnish any cause for non-production of evidence is belied by the record itself. It has been noted by the learned Civil Judge in the order that the case is being adjourned on account of sickness of the petitioner, which was a sufficient cause within the meaning of Order XVII, C.P.C. For adjournment of the case. There is yet another aspect of the case, whereunder the trial Court has noted in the interim order, dated 7-1-2003 that no body appeared on behalf of the petitioner/plaintiff. In absence of the petitioner or anybody else on her behalf, suit should have been dismissed for non-prosecution instead of applying penal provisions of Order XVII, rule 3, C.P.C.
The complained activity of the trial Court deprived the right of the petitioner to have the suit restored under the provisions of Order IX, rule 9, C.P.C.
9. For what has been discussed above, both the Courts below acted illegally and with material irregularity and decided the lis without properly comprehending points of law and facts involved in the case, thus, there judgments are not maintainable by law. This revision petition is consequently, accepted, judgments and decrees, dated 7-1-2003 and 17-2-2003 passed by the learned Civil Judge and the learned Additional District Judge, Jhang, are set aside with the result that suit of the petitioner shall be deemed to be pending before the learned trial Court, which shall be decided in accordance with law after providing the petitioner at least two opportunities for producing her evidence. Parties are directed to appear before the trial Court on 26-3-2004. There will be no order as to costs.