ABDUL KAREEM Versus NOOR BEGUM

1. The brief facts out of which the present civil revision arises are that the petitioner filed a suit against the respondents in the Court of Civil Judge, Mandi Bahauddin for specific performance of agreement to sell. The respondents filed a written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed seven issues on 19‑2‑1990. The petitioner failed to produce his evidence before the trial Court in spite of various opportunities granted to the petitioner to produce the evidence. The trial Court closed the evidence of the petitioner vide order dated 9‑7‑1992 and consequently the suit filed by the petitioner was dismissed on the same day. The petitioner being aggrieved filed an application under section 151, C.P.C. for review of the aforesaid order before the trial Court who dismissed the same vide order dated 4‑10‑1992. The petitioner being aggrieved of the order of the trial Court dated 4‑10‑1992 filed appeal before the Additional District Judge who dismissed the same vide impugned order dated 11‑10‑1995 on the ground that the impugned order passed by the trial Court was not appealable before the first Appellate Court by virtue of Order 43, rule 1 and Order 47, rule 7, C.P.C. read with section 104, C.P.C.

2. The learned counsel of the petitioner submits that orders of the Courts below are result of misreading and non‑reading of the record. He further submits that superior Courts insisted that cases must be decided on merits instead of technicalities. Both the Courts below committed material irregularity to knock out the petitioner on technical ground. He further submits that if appeal was not maintainable the learned Additional District Judge was vested with the jurisdiction under section 151, C.P.C. to examine the legality of the impugned order in appeal, therefore, rejection of appeal amounts to failure to exercise jurisdiction vested in Court. In support of his contention he relied upon 1979 CLC 823 (Muhammad Rafique v. Mst. Rashida Begum). The revision petition was admitted for regular hearing vide order dated 14‑4‑1996. Respondent No.2 had engaged Ch. Muhammad Abdullah, Advocate who filed power of attorney. His name is also mentioned in the cause list but he did not enter appearance. Service of respondent No. l had been effected as is evident from report of process‑server on 29‑5‑1996 but she did not enter appearance. Office sent various registered notices to the parties out of which last two registered notices sent by the office to the respondents on 16‑2‑2001 for 8‑3‑2001 and thereafter on 12‑3‑2001 for 3‑4‑2001 but the respondents failed to enter appearance. In this view of the matter I have no alternative except to decide the case against them ex parte. Aslam Hayat, Advocate was present in Court who was asked to assist the Court as amicus curiae. He submits that impugned order is valid and the learned counsel of the petitioner failed to point out any illegality or irregularity committed by the Courts below.

3. I have given my anxious consideration to the contentions of the learned counsel of the petitioner and perused the record myself. It is better appropriate to reproduce facts in choronological order to resolve the controversy between the parties:‑‑‑

(1) ??????? Petitioner filed suit for specific performance before the Civil Judge First Class on 13‑9‑1969. Respondents filed written statement, controverting the allegations levelled in the plaint.

(2) ??????? Trial Court framed seven issues. Out of the pleadings of the parties on 19‑2‑1990 petitioner was granted ten opportunities to produce his evidence but the petitioner failed to produce evidence.

2. The trial Court adjourned the case on 24‑5‑1992 on the request of the petitioner.

3. The order dated 24‑5‑1992 is reproduced hereunder for ready reference:‑‑‑

4. URDO PARAGRAPH 1606 and the case was adjourned for 9 r7‑1992. The trial Court closed the evidence of the petitioner on 9‑7‑1992 under Order 17, rule 3, C.P.C. The order dated 9‑7‑1992 is reproduced hereunder for ready reference:‑‑

5. URDO PARAGRAPH 1606

6. The trial Court dismissed the suit vide judgment and decree dated 9‑7‑1992. Petitioner filed application under section 151, C.P.C. before the trial Court for review of the order dated 9‑7‑1992. The trial Court dismissed the application vide order dated 4‑10‑1992. The petitioner did not challenge order dated 9‑7‑1992 and filed appeal before the first Appellate Court against the order dated 4‑10‑1992. The appeal was dismissed vide impugned order dated 11‑10‑1995 on the ground that the appeal is not competent against the impugned order. The contention of the learned counsel of the petitioner that first Appellate Court was vested with the jurisdiction under section 151, C.P.C. to examine the legality of the impugned order in appeal instead of dismissing the appeals on technical ground. The contention of the learned counsel of the petitioner has force as per principle laid down by this Court in Muhammad Rafique's case 1979 CLC 823. Instead of remanding the matter to the first appellate Court for the purpose to treat the appeal of the petitioner as revision and then decide the same in accordance with law is inconvenience to the parties. Therefore, I intend to decide the case on merits. This Court has ample power to see the legality or illegality of the orders passed by the Courts below suo motu under section 115, C.P.C. 8 Now I intend to examine the orders of the Courts below under section 115, C.P.C. The order sheet of the trial Court reveals that ten opportunities were granted to the petitioner to produce his evidence but the petitioner failed to produce evidence from 19‑2‑1990 to 9‑7‑1992. This fact brings the case in the area that the trial Court did not commit any material irregularity and rightly closed the evidence of the petitioner in terms of the law laid down by the superior Courts. In arriving to this conclusion I am fortified by the law laid down in 1993 MLD 930 (Baldia Shahpur Saddar's case) in which eight I adjournments were granted. Thereafter, the evidence was closed. Similarly in 1993 CLC 1325 (Muhammad Nawaz v. Manzoor Hussain and others. In this case evidence were closed after nine adjournments. In case 1993 CLC 1514 (Sajida Mussarrat v. Muhammad Shafi and 2 others). In this case evidence was closed after four adjournments.

7. The impugned order of the trial Court dated 9‑7‑1992 reveals that petitioner's evidence was closed on the ground that he failed to produce evidence on successive dates. It is also settled proposition of law that order dismissing suit under Order 17, rule 3, C.P.C. is judgment on merits. In arriving to this conclusion I am fortified by law laid down by the Hon'ble Supreme Court in Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474. It is also settled law that discretion is to be exercised fairly, justly on relevant consideration in the light of attending facts and circumstances of each case as per principle laid down in 1995 CLC 431 (Muhammad Siddique v. Syed Zulfiqar Haider etc). The order dated 24‑5‑1992 reveals that the last opportunity was granted to the petitioner with cost of Rs.50. The order dated 9‑7‑1992 does not reveal that petitioner or his counsel had paid the cost to the opposite‑party. It is pertinent to mention here that non‑payment of cost of adjournment is material fact, to be considered at the time of setting aside the order passed by the trial Court under which the evidence of the party was closed. In arriving to this conclusion I am fortified by 1994 CLC 690 (Naseem Ahmed v. Haji Usman and another). The order dated 24‑5‑1992 reveals that case was adjourned to produce evidence on payment of cost but the petitioner again failed to produce his evidence on G 9‑7‑1992. The trial Court was justified to close the evidence. In arriving to this conclusion I am fortified by the following judgments: ‑‑

8. PLD 1994 Lahore 24 (Hassu Khan v. Muhammad Amin and others) and 1994 CLC 348 (Mehr Ghulam Dastgir v. Dr. M. Shabbir Khan).

9. The aforesaid proposition of law is settled since long ago that non?payment of cost may entail penalties prescribed in Order 17, rule 3, C.P.C. in 127 Indian Cases 27. It is settled proposition of law that nobody should be j entitled to get benefit of his own misdeeds.

10. In view of what has been discussed above this revision petition hash no merit and the same is dismissed.

11. Q.M.H./M.A.K./G‑77/L

12. Revision dismissed.