SAJIDA MUSSARRAT vs MUHAMMAD SHAFI and 2 others

ORDER

1. ' This is a plaintiffs civil revision from the decree of Additional District Judge confirming that of the trial Court dismissing her suit on account of failing to give proof to support her claim.

2. ' Relevant facts for the decision of the revision petition briefly stated are:-- ' Muhammad Latif owned 18 kanals, 3 marlas of land at mauza Aarazy Yaqoob of Tehsil and District Sialkot. He died without leaving a male issue. He was survived by a widow, a daughter and four brotheRs, Succession to his estate was governed by Sunni Law. Daughter of the deceased claimed that he was a shiite and except for her and her mother, none was entitled to inherit from his land.

3. Therefore, correctness of Inheritance-Mutation No,466 was questioned by her and its cancellation was prayed for. Suit was instituted on 15-6-1989, by the daughter of the deceased Muhammad Latif. To the suit, Muhammad Shaft, Muhammad Hussain and Muhammad Sharif were added as defendants. They submitted their defence and pleaded that their deceased brother professed Hanafi faith and his inheritance was rightly distributed. On 29-5-1990, the trial Court settled issues, as many as six in number and required the parties to file list of witnesses alongwith documents within seven days and adjourned the suit for evidence of the plaintiff on 18-7-1990. From 18-7-1990 to 20-3-1991, plaintiff was allowed four opportunities for producing her evidence. Each time she requested for adjournment and her request was accommodated. On 2-3-1991, the suit was adjourned with a final opportunity to the plaintiff to produce her evidence on the next date of hearing. On 20-3-1991, a similar order was made subject to payment of Rs,150 as cost. Eventually, on 14-4-1991, neither the plaintiff nor her counsel appeared. Defendants were in attendance and were marked present with their councel. Having regard to the history of previous defaults committed by the plaintiff in failing to produce evidence, the trial Court closed her case and since there was no material in support of the claim, dismissed the suit on 14-4-1991. Plaintiff preferred an appeal. It was dismissed on 29-9-1992 by learned Additional District Judge who found no justification for non-application of Order XVII, rule 3 of Civil Procedure Code to the facts to the case.

4. Thereupon, a petition in revision has been put in by her.

5. ' Mr. Muhammad Ismail Chaudhary, learned counsel for petitioner vehemently urged that since there was no material on record for deciding of the controversial points on merits, the trial Court could not have invoked the Order XVII, rule 3 of Civil Procedure Code. Instead, rule 2 of the Order ought to have been applied and either the suit must have been dismissed for default in appearance or else adjourned subject to payment of costs. I was unable to agree to this kind of approach. Plaintiff was allowed enough time and opportunity for adducing evidence but she failed.

6. After all, there must be a limit to number of adjournments to a defaulting litigant and the Court could not be at his mercy to be trifled with impunity. Having gained time upon payment of costs as a last opportunity, the plaintiff not only defaulted in producing the evidence but failed to appear also. Her counsel also adopted the same role. There was no legal justification for the adoption of non-cooperative attitude. Therefore, a just occasion existed for application of Order XVII, rule 3 of Civil Procedure Code for closing plaintiffs evidence. Independent of it, A even upon refusal of adjournment which clearly lay in the discretion of the trial Court, it could have applied Order. XVII, rule 1 of Civil Procedure Code (Lahore Amendment) for decision of the suit against the plaintiff. In Mst. Arifa Amjad and 2 others v. Abbas Tayyab Dar and another 1990 CLC 1743, a Division Bench of this Court of which I was a Member had taken the view that application of Order XVII, rule 3 of Civil Procedure Code pre-supposed presence of the party before the Court. However, in Executive Engineer, Peshawar v. Messrs Tour Muhammad and Sons and 4 others 1983 SCMR 619, the Supreme Court observed:- "This rule applies where a party who is granted time to perform some act, not only fails to do so but is also absent on the date to which the hearing is adjourned. It is immaterial whether the adjournment was granted at the instance of the party or for other reasons. Where a defendant does not appear at an adjourned hearing, this rule applies irrespective of whether he appeared at the first hearing or not and the Court has to exercise its discretion; its hands are not tied by the previous ex parte order."

7. ' The judgment of the Supreme Court was binding and shall prevail. It covered the case of a double default for the application of Order XVII, rule 3 of Civil Procedure Code. My view in Division Bench case was that Rule 3, C.P.C. Did not cover the case of double default. Be that as it may, plaintiff was allowed sufficient time and opportunity in adjournments but she failed to avail and utilize the time properly. Upon this view to the matter, it shall not be equitable to interefere and allow further indulgence to the defaulter-plaintiff. Civil Revision is dismissed in limine.

8. ' Original records be returned.