GHULAM QADIR alias QADIR BAKHSH vs Haji MUHAMMAD SULEMAN and 6 others

ORDER

ABDUL HAMEED DOGAR, J.--Petitioner Ghulam Qadir alias Qadir Bukhsh seeks leave to appeal against the judgment dated 8-10-2001 passed in R.F.A. No,87 of 1999 by a learned Division Bench of the Lahore High Court, Multan Bench, whereby the same was dismissed.

2. The facts leading to the filing of the instant petition are that the petitioner filed a suit for cancellation of registered power of attorney dated 26-6-1990 and the sale deed dated 30-6-1990 in favour of respondent No,2, namely, Ghulam Qadir regarding 40 Kanals of land. The suit was resisted by the respondents by filing written statement, wherein they denied the assertions of the petitioner made in the plaint.

3. On 6-11-1994, the trial Court framed 12 issues and fixed the case for recording the evidence of the petitioner's side. Thereafter the matter was being adjourned from 3-1-1995 on one or the other pretext on the request of the petitioner till 4-6-1998. On the next date of hearing viz. On 18-7-1998, the matter was adjourned as the Presiding Officer was on leave. On 15-9-1998, the petitioner requested for adjournment on the ground that some compromise was being effected between the parties but was specifically directed by the trial Court to come forward with compromise else shall produce evidence on 29-10-1998. On which date, neither the application for compromise in fact was filed nor the petitioner was in attendance. Thereafter though strictly directed to produce evidence on several dates yet the petitioner failed to produce, evidence till 4-2-1999 except on 30- 11-1998 on which date the Presiding Officer was on leave. However, an application under Order XIV, rule 5, C.P.C. Was preferred by the petitioner which was dismissed after hearing the parties by the trial Court on 14-7-1999 and the petitioner was afforded last opportunity to produce his evidence.

Lastly, on 14-7-1999, neither the petitioner appeared nor his counsel was in attendance, however, one Mr. Qamar-ul-Hassan Thaheem, Advocate, appeared. Resultantly, his evidence was closed under Order XVII, rule 3, C.P.C. And the suit was dismissed.

4. Feeling dissatisfied, the petitioner assailed the order in. R.F.A. No,87 of 1999 before the Lahore High Court which too was dismissed as mentioned above.

5. We have heard Mr.Gul Zarin Kiani, learned Advocate Supreme Court for the petitioner, Ch.Sagheer Ahmad, learned Advocate Supreme Court for the respondents and have gone through the record and the proceedings of the case in minute particulars.

6. Learned Advocate Supreme Court for the petitioner in support of his case submitted the following propositions:

(a) Whether the provisions of Order XVII, rule 3, C.P.C. Could justifiably be applied and invoked in case of double default i,e, nonappearance of the petitioner and his counsel as well failing to produce evidence or the provisions of Order XVII, rule 2, C.P.C. Read with Order IX should have been applied and the suit ought to have been dismissed for non-prosecution in view of the law laid down in the cases reported as Sattar Muhammad Raja Anwarullah Khan (1985 CLC 1550), Sangram Singh v. Election Tribunal, Kotah and another (AIR 1955 SC 425) and M/s. Hindustham Steel Ltd. v.

Prakash Chand Agarwal and another (AIR 1970 Orissa 149).

(b) In this matter, Order XVII, rule 1, sub-rule (3), C.P.C. As amended would be applicable in view of the precedent laid down in the case of Malik Muhammad Abdullah v. Sahib Yar (1982 CLC 2161).

There was also no material available with the Court to dismiss the suit.

(c) Whether Issue No,1 as to the general power of attorney and sale on its basis, when the petitioner pleaded fraud in regard thereof and denied its execution was correctly framed and its onus of proof was rightly placed upon the petitioner or that in the event of denial, it was for the person who relied upon its validity.

(d) That in exercise of jurisdiction under Article 187 of the Constitution, this Court may allow one chance to the petitioner to produce the evidence as his valuable rights have been involved in the matter.

7. The learned Advocate Supreme Court for the respondents vehemently controverted the above contentions and argued that the petitioner was afforded full opportunity to adduce his evidence but miserably failed, as such the judgments of the trial Court as well as the learned Lahore High Court do not suffer from any illegality or irregularity.

8. As per record, the suit in the instant case was filed on 29-7-1990, whereas the written statement was filed on 28-11-1992 and the issues were framed on 6-11-1994. Thereafter, the was fixed for recording the evidence of the petitioner's side. Since 3-1-1995 till 14-7-1999, the petitioner failed to produce the evidence. It was only on one date viz. 13-11-1998, he brought four witnesses but the matter was adjourned as the Presiding Officer was on leave on that day. Meanwhile, on 4-2-1999, the petitioner preferred an application under Order XIV, rule 5, C.P.C. Which was dismissed on 29-6- 1999 after affording full opportunity of hearing to the parties and the matter was adjourned to 14-7- 1999 with a specific direction to the petitioner to produce his evidence as a last opportunity mainly for the reason that the matter was sufficiently old and related to the year 1990. It would be pertinent to note that in spite of specific directions, the petitioner neither bothered to appear himself nor arranged production of his counsel but one Mr. Qamar-ul-Hassan Thaheem, Advocate, appeared on behalf of his counsel only. In such circumstances, the trial Court was left with no option but to close his side under Order XVII, rule 3, C.P.C.

9. The provisions of Order XVII, rule 2 read with Order IX of the C.P.C. Would not be applicable in this case. According to Order XVII, rule 2, C.P.C., the Court, where on any date the heating of the suit is adjourned and the parties or any of them failed to appear, may proceed to dispose of the suit in one of the modes directed by Order IX of the C.P.C. The provisions of sub-rule (3) of rule 1 of Order XVII of the C.P.C. (Lahore Amendment) would also be of no help to the case of the petitioner as he admittedly failed to show sufficient cause for grant of the adjournment. The case-law referred above is also on different facts and circumstances than that of the petitioner's case. In the case of Malik Muhammad Abdullah (supra), the suit in question was dismissed on the first date after framing the issues and the trial Court did not afford any opportunity to lead his evidence. The case of Sattar Muhammad Raja (supra) is with regard to the Sindh Rented Premises Ordinance and that the landlord had filed his own affidavit and that of the witnesses who were consequently cross- examined by the tenant but on the adjourned date, the tenant failed to file his affidavit and that of the witnesses and requested for extension of time which was declined and his side was closed. The case of Sangram Singh (supra), referred to from Indian jurisdiction, is also on different facts and circumstances wherein an ex parte order was passed against the defendants as he did not appear on the first hearing and did not file written statement.

10. In the case in hand, the petitioner admittedly failed to cause the attendance of his witnesses from 3-1-1995 to 14-7-1999 without any valid reason. Even on the last date of hearing, neither he nor his witnesses or his Advocate was present which was a sufficient cause to close the evidence. Thus the trial Court while exercising jurisdiction under Order XVII, rule 3 of the C.P.C., has not committed any illegality.

11. Accordingly, concurrent findings of the two Courts below are maintained and the petition being devoid of any force is dismissed and leave refused.