FAIZ BAKHSH vs DISTRICT JUDGE, MULTAN AND OTHERS

' This is a petition under Article 9 of the Provisional Constitution Order, 1981, whereby, Faiz Bakhsh, petitioner wants this Court to declare the order dated 4th January, 1981 of the learned Civil Judge, whereby, he closed the evidence of the petitioner/defendant under Order XVII, rule 3, C. P. C. And the order dated 24th April, 1981 of the learned District Judge, Multan confirming the order of the trial Court, as without jurisdiction.

2. The facts leading up to this petition in brief are that Ahmad Khan respondent No, 1 filed a suit for pre-emption against the petitioner/vendee defendant before the Civil Judge, Lodhran. The suit was contested, issues were framed and the evidence produced by the plaintiffs/respondent was recorded on 25th February, 1980. Thereafter, the case was adjourned for the evidence of the petitioner/ defendant from time to time and ultimately on 4th January, 1981 the trial Court closed the evidence of the petitioner/ defendant under Order XVII, rule 3, C. P. C. Aggrieved by that order the petitioner filed revision before the District Judge, Multan which was dismissed on 24th April, 1981.

Hence this writ petition.

3. Learned counsel for the petitioner has vehemently contended that the order of the Civil Judge closing the evidence of the petitioner/defendant under Order XVII, rule 3, C. P. C. On 4th January, 1981 was without jurisdiction, because the previous adjournment dated 13th October, 1980 was not at the request of the petitioner-defendant.

4. I have heard the learned counsel and gone through the record shown to me by the learned counsel. I find that. The evidence of the plaintiff/respondent was recorded on 25th February, 1980 and the case was adjourned to 15th April, 1980 for recording the evidence of the petitioner/ defendant. On 15th April, 1980 the petitioner did not produce the witnesses and the hearing was adjourned to 17th June, 1980 subject to the payment of Rs, 25 as costs. On 17th June, 1980 the learned counsel for the petitioner/defendant requested for an adjournment. The trial Court granted last opportunity subject to the payment of Rs, 35 as costs and the case was adjourned to 13th October, 1980. On 13th October, 1980, the petitioner/defendant did not produce evidence. The trial Court in the interest of justice, granted last opportunity for the second time and adjourned the case to 4th January, 1980. On 4th January, 1980 the counsel for the petitioner/defendant was present, but neither the petitioner nor his witnesses appeared before the Court who, waited for their appearance till 4 p. m. In these circumstances, the trial Court was constrained to close the evidence of the petitioner/defendant on 4th January, 1980.

5. I have considered the arguments presented by the learned counsel with care. I am not inclined to agree with the learned counsel for the petitioner that for the application of Order XVII, rule 3, C. P.

C. It was necessary that the previous adjournment dated 13th October, 1980 should have been granted at the request of the petitioner. I am convinced that if, once the case is adjourned at the request or at the instance of a party, the Court would be legally competent to close the evidence on any subsequent date thereto and it is not the legal requirement that the previous adjournment should have been granted at the request of the party. Even otherwise, I am of words the opinion that it is not necessary for the Court to write in so many words that the case is adjourned at the 'request of al particular party. The trend of the circumstances and the order itself makes very much clear that on 13th October, 1980 the case was adjourned at the instance of the petitioner because it was adjourned to provide an opportunity to him to adduce evidence. For all these reasons I am of the opinion that there is no merit in this petition and the same is hereby dismissed in limine.