FARHAT AFZA Versus FEHMEEDA BEGUM

MALIK MUHAMMAD AWAIS KHALID, J.--- Facts leading to filing of instant civil revision are that the petitioners instituted a suit for declaration, permanent and mandatory injunction along with cancellation of mutation No.797 attested on 28.1.2020 against the respondents alleging therein that the said mutation in favour of respondent No.2 was result of fraud and forgery, hence ineffective upon the rights of the petitioners. The petitioners further claimed that they were in possession of the disputed property, however, on the basis of forged mutation, respondents wanted to interfere into their possession. The suit was contested by respondents Nos. 1 and 2 by filing written statement raising several preliminary and factual objections, whereas the other respondents were proceeded ex-parte. Out of divergent pleading of the parties, the learned trial court framed the following issues:-

2.Whether the plaintiffs are owner in possession of the portion of the suit property being legal heirs of Muhammad Fazal? OPP

3.If the issues Nos. 1 and 2 are affirmative whether the plaintiffs are entitled to get a decree for Declaration along with cancellation of mutation No.797 dated 28.01.2020 with permanent and mandatory injunctions as prayed for? OPP

4.Whether the plaintiffs have no cause of action to file the instant suit? OPD

5.Whether the plaintiffs have not come to the court with clean hands? OPD

6.Whetrher the plaintiffs are estopped by their own words and conduct to file the instant suit? OPD

7.Whether the plaintiffs have dragged defendants in this false and frivolous litigation as such they are entitled to get special costs under section 35-A, C.P.C.? OPD

8.Relief.

After framing of issues, the petitioners were directed to produce their evidence but they failed to produce the same, hence their evidence was closed under Order XVII Rule 3, C.P.C. and their suit was dismissed by the learned trial court, vide order and decree dated 3.7.2024, which was assailed by the petitioners through appeal which also met the same fate, vide judgment and decree dated 18.10.2024. Both these order/decree and judgment/decree have been assailed by the petitioners before this Court through the instant civil revision.

2. I have heard the arguments of learned counsel for the parties and perused the record.

3. Perusal of order sheet of learned trial court transpires that after framing of issues on 21.3.2022 the plaintiffs/petitioners were directed to produce their evidence but the petitioners failed to produce their evidence despite availing many opportunities, hence the learned trial court constrained to invoke the provisions of Rule 3 of Order XVII of the C.P.C. by striking off the right of the petitioners to produce their evidence and dismissed their suit. They filed appeal which was allowed with a direction to provide only one opportunity to the petitioners to produce their complete evidence. Afterwards, the case was fixed by the trial court with extreme last opportunity for the said purpose but subsequently the case adjourned on four dates of hearings because the petitioners failed to produce their counsel on two dates of hearing, on one date of hearing learned Presiding Officer was not present and on fourth date of hearing, the evidence was not present. Ultimately, on failure of petitioners to produce evidence, their right to produce evidence was closed by the learned trial court for the second time, vide order dated 3.7.2024. Again the petitioners preferred appeal which was dismissed vide impugned order dated 18.10.2024.

4. Record further transpires that the petitioners availed more than 20 opportunities but failed to produce their evidence and even for the second time when the case was remanded to the learned trial court. This conduct of the petitioners, therefore, indicates that they were not interested or willing to proceed with the suit despite the fact that they were granted absolute last and final opportunities for production of their evidence but they did not pay any heed towards the orders of the trial court. The learned trial court was, therefore, justified to pass the impugned order, as law favours the vigilant and not the indolent.

5. Even otherwise, the provision of Order XVII Rule 3, C.P.C. clearly reflects that when specific date of hearing is fixed or time is granted to any party of the suit to produce evidence or to cause attendance of the witnesses or to perform other act(s) necessary for the progress of the suit, it becomes obligation of the party concerned to take efficient measures towards the same. The avoidance of such order to produce evidence or to cause attendance of witnesses, the Court is required to proceed further and in appropriate circumstances/cases, the Court is fully empowered to settle the issue and decide the case. The higher courts generally do not interfere if the trial court has followed the due process of granting multiple opportunities and the party's conduct is found to be negligent or obstructive. Such courts will interfere if the order was passed without fulfilling the prerequisites, such as if the adjournment was not at the request of the defaulting party, or if the court failed to provide a warning or if there was no material on record for a decision on merits. Since the issues were framed on 21.3.2022, the suit was at the stage of the plaintiffs/petitioners' evidence and on 15.2.2023 final last opportunity and then again 21.6.2023 with extreme last opportunity and again on 21.10.2023 with extreme last and final opportunity were given to the petitioners to produce their evidence. Lastly, when on 7.12.2023 the petitioners did not produce evidence, the trial court dismissed the suit, closed their evidence by invoking the provisions of Order XVII Rule 3, C.P.C. and dismissed the suit of the petitioners on 7.12.2023. The appeal was filed by the petitioners which was allowed by the appellate court on 27.2.2024 with cost of Rs.5000/- while setting aside the order of the trial court and affording one last opportunity to produce their evidence. It is important to add that the learned trial court even accepted the application of the petitioners for evidence of plaintiff No.1 through video link but that order was not complied by the petitioners. They failed to produce the evidence despite numerous opportunities, hence the learned trial court closed their right to produce evidence by invoking the provisions of Order XVII Rule 3, C.P.C. and dismissed the suit on 3.07.2024. Against which, an appeal was filed which was dismissed on 18.10.2024. Therefore, as discussed above, the petitioners disregarded the numerous opportunities afforded by the trial court to produce their evidence. If litigants are allowed to proceed with their matters without following rules and regulations, framed and promulgated to lead litigation to ultimate end at the earliest, it would not only increase burden upon Court(s) but also destroy trust of general public. Litigants cannot be permitted to take the courts for granted and proceed with the lis as per their whims and wishes as well as cause agony to their rival parties without any progress in the matter(s) brought against them. The Honorable Supreme Court of Pakistan while dilating upon the scope, contours and applicability of the Order XVII Rule 3, C.P.C. highlighted the importance of active and diligent participation by litigants in judicial proceedings. Repeated adjournments for producing evidence defeat the very object of Rule 3 of the C.P.C. Reliance is placed on the cases of Muhammad Akram v. Shafqat Ali (2025 SCMR 1032), Moon Enterpriser CNG Station Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another (2020 SCMR 300) and Atta Elahi v. Allah Bachaya and others (2024 CLC 29) .

6. In view of above discussion, I find no illegality or irregularity in the impugned order/decree and judgment/decree of learned courts below, warranting interference by this Court in exercise of its revisional jurisdiction, hence concurrent findings are hereby upheld and as consequence whereof, the instant civil revision stands dismissed.

MQ/F-11/L Revision dismissed.