ORDER SHEET
IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Civil Revision No. S-57 of 2012
|
DATE |
ORDER WITH SIGNATURE OF JUDGE |
17.12.2012
Mr. Abdul Karim
Surahio, advocate for applicant.
Mr. Abdul Hameed Khan, advocate for respondents NO.01 to 08.
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Naimatullah Phulpoto. J- This civil revision application under section 115, C.P.C arises out of two conflicting judgments recorded by trial Court and the court of 1st appeal. The learned Senior Civil Judge, in First Class Suit (old No.130/2006 and New No.85/2009 re. Ali Raza and others versus Naveed Anjum and others ) dismissed the suit under Order XVII Rule 3,C.P.C. vide judgment and decree dated 03.3.2011. The learned 3rd Additional District Judge, in Civil Appeal No.12/2011 against the judgment and decree, set aside the same and remanded suit to the trial Court vide judgment dated 15.6.2012 for recording evidence of parties and deciding case on merits according to law.
2. Brief facts of the case of the applicant are that plaintiffs/appellants named above filed suit for declaration, cancellation of the documents, perpetual injunction against the respondents/defendants in respect of the property in dispute and prayed for judgment and decree as under:-
(a) Declaration that the plaintiffs No.1 to 4 are owners of share of 18 ½ paisa each and plaintiffs No.5 to 8 are owners of share of 6 ½ paisa each in suit property.
(b) Declaration that mutation entries of gift allegedly made by Mst.Nur-Jehan to plaintiffs 3 and 4 and similar mutation entry of gift by Mst.Zubeda of her share and that of plaintiff NO.1 and 2 to plaintiff No.3 and 4 are illegal and liable to be cancelled.
(c) Declaration that the sale-deed dated 08.9.2004 in favour of defendant No.1 is illegal, without competence without consideration and a forgery and is liable to be cancelled.
(d) Declaration that mutation entry dated 11/2004 in favour of defendant No.1 is illegal and liable to be cancelled.
(e) Cancellation of the registered sale deed dated 08.9.2004 in favour of the defendant No.1.
(f) Perpetual injunction against the defendant No.1 from interfering with the possession of plaintiffs over suit property and also restraining him from selling, alienating, conveying the suit property or encumbering the same directly or indirectly through any one in any manner what-so-ever.
(g) Perpetual injunction against defendant No.3 from restraining any sale or conveyance deed or any deed of encumbrance or charge on the suit property and defendant NO.2 from recording any mutation in respect of suit property on the basis of any such deed.
(h) Any other relief/reliefs as the Honourable Court may deem fit in the circumstances of the case.
(i) Costs of the suit.
3. After service of summons, respondent/defendant No.1 appeared and filed written statement and denied the case of plaintiffs. Out of the pleadings of the parties, issues were framed by civil court. In support of the case, plaintiffs/appellants examined official witnesses and suit was adjourned to 03.3.2011 for recording the evidence of the plaintiffs side. Suit was dismissed by the trial court under Order XVII Rule 3, C.P.C. on 3.3.2011.
4. Mr. Abdul Karim Surahio, learned counsel for the applicant has mainly contended that learned Senior Civil Judge had provided sufficient opportunities to the plaintiffs/respondents for producing the evidence but plaintiffs failed. It is further contended that learned Additional District Judge has remanded case without realizing the fact that despite a number of opportunities, plaintiff failed to lead evidence. Mr. Surahio argued that trial Court has rightly dismissed suit under Order XVII Rule 3, C.P.C.
5. Mr. Abdul Hameed Khan, learned counsel for the private respondents No.01 to 08 argued that dismissal of the suit under Order XVII Rule 3, C.P.C was not warranted under the law as case was not adjourned on the previous date at the request of respondents. He submitted that on 14.2.2011 case was fixed. On that date, learned Senior Civil Judge was on casual leave. Case was adjourned to 03.3.2011, on the said date learned counsel for the respondents was busy before this Court in 1.CP No.1109/2009, 2.CP No.571/2010 and 3.R.A No.81/2003. In support of his contentions, he rightly relied upon the case of Qutub-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109.
6. I have carefully heard learned counsel for the parties and perused the relevant record.
7. From the perusal of the case diary dated 14.2.2011 it transpires that Presiding Officer was on casual leave. Case was adjourned to 3.3.2011, on the said date, plaintiff and his advocate were called absent but clerk of Mr. Abdul Hameed Khan submitted an application for adjournment. It was declined and suit was dismissed under Order XVII Rule 3,C.P.C. Relevant portion of judgment dated 03.3.2011 is reproduced as under :-
“After admission notices were issued to other side and defendants served and filed written statement. Issues were framed and matter was fixed for recording of evidence of plaintiff side and since long matter is fixed for evidence but plaintiff got time and adjournments at one or other pretext and avoided to proceed with the matter and he want to linger on the matter. Today matter is also fixed for recording of evidence but Mr.Abdul Hameed Pathan filed adjournment application through his clerk. Sufficient time was granted and these things shows that plaintiff lost his interest from suit, hence I hereby dismiss the instant suit under order XVII (3) C.P.C with no order as to costs.
8. In order to appreciate contentions of learned counsel for the parties Order XVII Rule 3 C.P.C is reproduced as under :-
‘’Order XVII Rule 3. Court may proceed notwithstanding either party fails to produce evidence, etc.- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.
9. From the perusal of case diary dated 14.2.2011 it is evident that Presiding Officer was on casual leave and case was adjourned to 03.3.2011. On the date of hearing, clerk of Mr.Abdul Hameed Khan, advocate for respondents submitted an application for adjournment but it was declined and suit was dismissed under Order XVII Rule 3, C.P.C. Such dismissal was not warranted in law as case was not adjourned on the previous date at the request of plaintiffs/respondents. Moreover, after framing of the issues official witnesses were examined by the plaintiffs and certain documents were brought on record. Learned Senior Civil Judge, was required under the law to discuss the evidence brought on record by the plaintiff but no finding at all has been recorded by trial Court. Simply, it is mentioned that plaintiff has got so many adjournments which showed that plaintiff has lost interest. Mr. Abdul Hameed Khan, learned counsel for respondents has placed on record cause list dated 03.3.2011 which showed that he was busy before this Court. Such application was submitted before learned Senior Civil Judge but it was declined. Law always favours adjudication on merits. Learned 3rd Additional District Judge, Larkana rightly came to the conclusion that on 14.2.2011 case was adjourned by COC of the trial Court with his signature. Presiding officer was on casual leave meaning thereby suit on the previous date was not adjourned on the request of the plaintiffs or their counsel but it was adjourned due to absence of the learned Presiding Officer of the concerned court. I, therefore, hold that finding of learned Additional District Judge requires no interference. There is no scope of interference by this Court in the exercise of the revisional jurisdiction which is essentially meant for correcting errors of the law committed by subordinate courts. Needless to emphasis that such revisional jurisdiction is restricted and narrower. In this regard reliance is placed upon the dictum laid down in the case of Haji Muhammad Din v. Abdullah PLD 1994 SC 291.
10. For the aforesaid facts and reasons absolutely there is no merit in the revision application which is accordingly dismissed. Mr. Abdul Hameed Khan, learned counsel for the respondents undertakes to produce plaintiff side evidence before the trial Court on the next date of hearing. The trial Court is directed to record evidence of both parties and decide the suit within three months, according to law.
Judge
Abid H. Qazi