ZAKIA BEGUM Versus MUSHTAQ KHAN
ORDER
CH. MUHAMMAD IBRAHIM ZIA, J.--- This appeal by leave of the Court is addressed against the judgment of the High Court dated 14.6.2013, whereby writ petition filed by the appellant has been dismissed.
2. Necessary facts giving rise to this appeal are that the plaintiff-respondent filed a suit for perpetual injunctions in respect of plot No.58-B, situated at Sector G/1, Part II, Mirpur against the defendant-appellant. The suit was resisted by the defendant appellant and proforma-respondents through written statement. The evidence of plaintiff was concluded and the defendants were ordered to produce evidence in support of their claim vide order dated 7.5.2007. Thereafter, the defendants failed to produce any evidence despite availing several opportunities, hence, the trial Court vide order dated 2.8.2007 provided them last and final opportunity for producing the evidence but despite this, the defendants failed to do the needful. Consequently, the trial Court, vide order dated 18.8.2007, closed the evidence of the defendants, except the statement to be recorded by the attorney and the witnesses who were to be summoned by the Court. Feeling dissatisfied from, this order, the defendant-appellant assailed it through revision petition in the Court of District Judge, Mirpur who made over the case to Additional District Judge Mirpur. The revision, petition was dismissed through the order dated 13.8.2008. The defendant-appellant challenged the order of Additional District Judge, Mirpur dated 13.8.2008 through a writ petition before the High Court which also met the same fate. The appellant has now approached this Court through the instant appeal by leave to challenge the propriety of the judgments passed by the Courts below.
3. Ch. Muhammad Afzal Advocate, the learned counsel for the appellant after narration of necessary facts submitted that the Courts below have failed to attend the legal and factual controversy raised in this lis which resulted into miscarriage of justice. He submitted that the trial Court on one hand has provided opportunity to the defendants for recording the evidence of the witnesses which have to be summoned by the Court and on the other hand, the other evidence which has to be produced by the defendants themselves has been closed. He submitted that the trial Court has provided only 2 or 3 opportunities, hence, for the ends of justice, the appellant should have been provided more opportunities. He also seriously objected to the impugned judgment that while deciding the revision petition, the learned Additional District Judge has referred to some orders passed on subsequent dates which is not proper course. He submitted that the Courts below have failed to decide the matter according to the principle of law and justice, therefore, this appeal merits acceptance.
4. The respondents have been proceeded ex parte. We have considered the arguments of counsel for the appellant and also perused the record made available. The order passed by the trial Court on 18.8.2007 is self speaking, the perusal of which shows that despite availing several opportunities, the defendants failed to produce evidence. Thus, the trial Court was constrained to close the evidence which has to be produced by the defendants except the statement of the attorney of the defendants and the witnesses to be summoned by the Court. In our opinion, this order does not suffer from any legal infirmity or illegality. According to the spirit of codal provisions of Civil Procedure Code, there is no concept to keep pending hearing of the civil cases for an indefinite period and granting adjournments without any sufficient reason. A bare reading of the statutory provision speaks that the parties should be vigilant and be ready to produce evidence without any unnecessary delay. In this regard, the statutory provisions of Order XVIII, Rule 2 of Civil Procedure Code are very much clear which read as under:--
"2. Statement and production of evidence.---(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.
(3) ."
5. So far as the adjournments in hearing is concerned, the provision of Order XVII, Rule 1 of Civil Procedure Code are very much clear which speaks that the adjournments can only be granted for sufficient cause and that also with costs if so deemed proper by the Court. The statutory provisions also speak that the hearing of the suit shall be continued from day to day and adjournment for recording of evidence shall only be made for the reasons to be recorded by the Court. It will be useful to reproduce here the statutory provisions of Order XVII, Rule 1 of the Civil Procedure Code which reads as under:--
"1. Court may grant time and adjourn hearing: (1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit.
Costs of adjournment.---(2) In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment.
Provided that, when the hearing of evidence has once begun, the hearing of the suit shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing beyond the following day to be necessary for reasons to be recorded."
(underlining is ours)
6. Even, according to the scheme of law, the Court is equipped with the power to decide the suit under the provisions of Order XVII, Rule 3 of the Civil Procedure Code, if the party failed to produce evidence or to cause attendance of his witnesses. Whereas according to general prevailing practice, the Courts are very lenient and generous in granting adjournments but this leniency and generosity of the Courts appear to have been misused for causing unnecessary delay in disposal of cases which ultimately results into miscarriage of justice. Such state of affairs may justify the proverb "justice delayed justice denied" that is why the general public perception is "Diwani Zindgani" ( ). In our opinion, the trial Courts have to keep the scale of justice even in exercising the discretionary powers while granting adjournments in the proceedings. For the ends of justice, expeditious disposal of the case is call of the day. Therefore, the Courts should have to discourage all such practices and tactics of procrastination which ultimately result into miscarriage of justice.
7. The orders passed by the trial Court as well as the revisional Court are quite in accordance with law and principles of justice. Neither they have violated any provision of law nor their orders are void, perverse or illegal. In such state of affairs, there is no occasion for exercising extra-ordinary writ jurisdiction by the High Court. There is plethora of judgments in this regard. In the case reported as Ch. Javed Iqbal v. Mst. Zainab Bibi and 8 others, [2005 CLC 197], the Lahore High Court has observed as follows:--
"5. Admittedly, the petitioner, while invoking the jurisdiction of this Court under Article. 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has challenged the judgment, passed by a revisional Court in exercise of its powers under section 115, C.P.C, and, thus, the question arises for determination is as to whether the Constitutional petition is competent and maintainable against the revisional order passed in civil litigation.
6. The said legal question was examined in Muhammad Sami Ullah Khan v. Additional District Judge and others reported as PLD 2002 Lah. 56, and this Court while relying upon Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131, Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 and Muhammad Khan v. Ghulam Fatima 1991 SCMR 970 came to the conclusion that a revisional order arising out of civil litigation could not be challenged in Constitutional petition. It was further held that if an order passed by a District Judge, in exercise of revisional jurisdiction, is although illegal, yet passed with jurisdiction, then the same cannot be assailed in a Constitutional petition and if an order passed by the revisional Court is wholly void or coram-non-judice, of course, a writ petition against such a revisional order, would be competent. Except for such orders in no other case an order passed by District Judge, as a revisional Court in civil litigation can be challenged through filing the Constitutional petition.
7. In the above perspective, I have examined the impugned judgment, dated 31.5.2004, rendered by the learned Additional District Judge and find that the said judgment is neither void nor without jurisdiction and the same was passed by the learned Additional District Judge, having jurisdiction in the matter. In view whereof, to my mind, the present petition is incompetent, nor maintainable and deserves to be dismissed on this sole ground."
The same view has been adopted in the case reported as Allah Bakhsh v. Additional District Judge-I D.I. Khan and 2 others [2005 CLC 1422]. Relevant paragraph 14 of the judgment reads as under:--
"14. Article 199 of the Constitution provides for extraordinary remedy against the State functionary who has trespassed beyond his jurisdiction or failed to exercise the jurisdiction vested in him. In this case the jurisdiction was adequately exercised by both the learned Courts and there was neither any excessive use of jurisdiction nor failure or refusal to exercise of jurisdiction so vested. This petition is a typical example of the misuse of process of law. When the law does not provide a remedy after the decision of the revision petition, the creation of an additional remedy through the Constitutional petition is patently illegal because thereby the intention of Legislature of drawing a line for the termination of litigation is negated. The Constitutional petitions are frequently filed against the revisional orders of the Courts in such a routine manner as if the constitutional petition was the next available remedy. Such petitions are pursued, as a matter of right, with the same prayer as made in the original proceedings. Thus, an attempt is made that whatever could not be achieved from the original Courts, the same should be achieved through Constitutional process. This can never be the intention of law or the Constitution. Unless the petitioner points out some serious defects in the exercise of jurisdiction by the judicial fora, the Constitutional petition is not maintainable as a matter of routine. In the case in hand the prayer of the petitioner was self negating, unreasonable and frivolous, therefore, the Courts had no alternative but to reject the same."
The above enunciated principle of law is also upheld by this Court in numerous cases, the latest of the series is in an unreported judgment titled Nazir Ahmed and others v. Riaz Ahmed and others, (Civil Appeal No. 29 of 2012, decided on 15.3.2013), the relevant portion of which reads as under:--
"If the High Court while exercising constitutional powers vested in it under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, reaches to the conclusion that the trial Court or District Judge while exercising revisional jurisdiction has failed to exercise powers vested in it under relevant provision of law and order is against the legal provision, then a writ of mandamus can be issued to such Court but while exercising constitutional jurisdiction the High Court cannot exercise those powers which are vested in it as an appellate Court. There is a marked distinction between the powers vested in the High Court under Section 44 of the writ jurisdiction as a constitutional Court and powers vested in it as a Court of appeal. The High Court cannot sit as an appellate Court on the decision of lower Court in constitutional jurisdiction. What is necessary for issuance of writ is that an order impugned before the High Court by way of writ petition is against the legal provision."
In this regard the cases reported as Abdul Ghani and 2 others v. Muhammad Salim and 3 others (1986 CLC 1217) Manzoor Hussain Shah and 15 others v. Allah Bachaya Khan and 5 others (1986 CLC 1813) and Allah Wasaya and others v. Province of Punjab through Collector Vehari and others (1987 MLD 2549), can also be perused.
For the reasons stated hereinabove, finding no force, this appeal stands dismissed with costs.
ZC/84/SC(AJ&K) Appeal dismissed.