PLJ 2010
[
Present:
Pervaiz Inayat Malik, J.
AHMAD
BAKHSH--Petitioner
versus
MAKHAN
KHAN--Respondent
W.P.
No. 116 of 2005, heard on 25.6.2009.
Civil
Procedure Code, 1908 (V of 1908)--
----O.
XVII, R. 3--Specific Relief Act, (I of 1877), S. 9--Closing of evidence--Suit
for possession u/S. 9 of Specific Relief Act, decreed by trial Court while
closing the evidence--Appeal was also dismissed--Constitutional
petition--Concurrent findings--Held: Petitioners despite repeated opportunities
failed to produce their evidence, therefore, no option was left with the trial
Court except to close the evidence under Order 17 Rule 3, CPC which order is
un-exceptionable--Sufficient evidence was available on the record on the basis
whereof trial judge rightly proceeded to decree the suit--First Appellate Court
by upholding the judgment and decree passed by trial Court proceeded to
exercise the authority vested in him under the law--Proceedings conduct
demonstrated by the petitioner is indicative of the fact that he wanted to
delay disposal--Such conduct by itself dis-entitles
him from the discretionary relief--There are concurrent findings of facts of
both Courts below, which besides being well reasoned are perfectly in
accordance with law and call for no interference in constitutional
petition--Petition was dismissed.
[Pp. 588 & 589] A, B & C
Mr.
Tahir Iqbal Malik, Advocate for Petitioner.
M/s
Mujtaba Aziz and Muhammad Najeeb Safdar, Advocates for
Respondents.
Date
of hearing: 25.6.2009.
Judgment
Briefly
stated facts as those emerge out of this constitutional petition are that
Respondent No. 2 Makhan Khan filed a suit for
possession under Section 9 of the Specific Relief Act against the petitioner in
the Court of learned Civil Judge, Layyah, which was
contested by the petitioner by filing written statement. The learned trial
Court framed as many as eight issues. Plaintiff produced oral as well as
documentary evidence Exh. P.1 to Ex.P.10 whereas the
defendant/petitioner produced only documentary evidence Exh.D.1 consisting of
four pages and judgment dated 6.10.1997. Since they failed to produce any oral
evidence despite having been provided number of opportunities, their evidence
was closed under Order XVII, Rule 3 CPC on 7.4.2001 and Vide impugned judgment
and decree dated 25.9.2003, the suit filed by the Respondent No. 1 was decreed,
where against an appeal was preferred which was dismissed vide the impugned
judgment and decree dated 18.12.2003.
2. It is on the record that initially the
learned counsel for the petitioner tried to delay the matter and sought
adjournments for arguing the appeal before the learned lower appellate Court
and also requested that same may be dismissed for non prosecution, however, the
learned Additional District Judge, Layyah proceeded
to dismiss the appeal in limine on merits on
28.12.2003, which order was not challenged instead a review application was
filed which too was dismissed vide judgment dated 7.2.2004.
3. Through this constitutional petition all the
three orders referred to above passed by the learned
Courts below have been assailed.
4. Mr. Muhammad Tahir Ejaz Joya Advocate learned
counsel for the petitioner argues that learned civil Court on erroneous
assumptions proceeded to close the evidence of the petitioner under Order XVII,
Rule 3 CPC without providing fair opportunity to the petitioner; that learned
trial Court despite repeated prayers that if the appeal is not competent the
same may be treated as revision proceeded to dismiss the appeal as well as
review application without any cogent reasons and that by now it is well
settled law that if appeal is not competent in that eventuality appeal could be
treated as revision and vice versa and that plaintiff could not prove his case
and it was not lawful for the learned trial Court to have decreed the suit of
Respondent No. 1. Likewise, the appellate Court has also committed serious
illegality by not allowing the appeal filed by the petitioner and subsequently
by not allowing the review application vide which it was prayed that if appeal
was not competent the same may be treated as revision. In support of his
contentions, places reliance on 2004 SCMR 2265, NLR 2004 Civil 177, 2000 CLC
334,1995 CLC 1578,2007 CLC 1754, PLJ 1999 Lahore 53 and PLD Supreme Court of
Pakistan 491.
5. Conversely M/S Mr. Mujtaba
Aziz and Muhammad Najeeb Safdar Advocates learned counsels for the respondents
vehemently oppose the submissions made at bar by learned counsel for the
petitioner and submit that this constitutional petition is not maintainable as
before the learned appellate Court Respondent No. 5 Muhammad Ramzan son of Ahmad Bakhsh was
the appellant, who has not assailed the orders, therefore, this constitutional
petition filed by Ahmad Bakhsh petitioner is not
competent; that Muhammad Ramzan appellant before the
learned lower Court has not even been arrayed as respondent in this
constitutional petition, therefore, the same is not maintainable as it is bad
for non joinder of necessary parties; that there are
concurrent findings of facts arrived at by both the learned Courts below.
Therefore, this petition is not maintainable; that conduct demonstrated by the
petitioner is such, which disentitles him to the equitable relief. Initially,
the disposal of the suit before the civil Court was delayed and thereafter no
evidence was produced, thus there was no option left with the civil Court
except to close the evidence of the defendant/petitioner, likewise no appeal
was competent before the learned lower Court nor the original order vide which
evidence was closed had ever been assailed. The learned Additional District
Judge, therefore, rightly proceeded to dismiss the appeal; that no review
application under circumstances was maintainable, therefore, that too was
rightly rejected; that this petition has been filed with malafide
intention and for ulterior motive with the sole purpose to add to the agonies
of the respondents and to engage them in protracted frivolous litigation. In
support of his contention places reliance upon PLD 1982 S.C 46 to canvass that
petition can be dismissed for non joinder of
necessary parties. Further relies upon PLD 2006
6. Arguments heard. Record perused.
7. I find that petitioners despite repeated
opportunities failed to produce their evidence; therefore no option was left
with the learned trial Court except to close the evidence under Order XVII Rule
3 CPC which order is un-exceptionable; Sufficient
evidence is available on the record on the basis whereof the learned trial
Judge rightly proceeded to decree the suit. Likewise, the learned Additional
District Judge, by upholding the judgment and decree passed by the learned
trial Court proceeded to exercise the authority vested in him under the law.
The case law referred to by learned counsel for the petitioner is of no avail
to him. On the contrary, the case law relied upon by the learned counsel for
the respondents clinches the matter. I may observe
here that throughout the proceedings conduct demonstrated by the petitioner is
indicative of the fact that he wanted to delay disposal, initially of the suit
before learned Trial Court and thereafter the appeal and review application
before the learned Additional District Judge, the purpose whereof seems to be to add to the agonies of the respondents.
This conduct by itself dis-entitles him from the
discretionary relief. There are concurrent findings of facts of both the
learned Courts below, which besides being well reasoned are perfectly in
accordance with law and call for no interference in constitutional petition.
Therefore, this petition being devoid of any merits is hereby dismissed with
costs throughout.
(M.S.A.) Petition dismissed.