Present: Mehmood Maqbool Bajwa, J.
RASHEED AHMAD
etc.--Petitioners
versus
Mst. SURRAYA BIBI
etc.--Respondents
C.R. No. 199 of
2009, heard on 27.10.2011.
Limitation Act,
1908 (IX of 1908)--
----Art.
152--Civil Procedure Code, (V of 1908), S. 115 & O. XVII, R. (3) Code
(Lahore High Court Amendment), O. XVII, R. 1(3)--Closure and dismissal of suit
for want of evidence--Order was called by preferring an appeal which was
dismissed being barred by time--Appeal was hopelessly barred by time and as
such no exception can be taken to judgment before High Court--Order regarding
closure of evidence could be deemed to be an order u/O. XVII, R. (1)(3) of Code
(Lahore High Court Amendment)--Counsel was not present in the Court when suit
was dismissed for want of evidence--Validity--According to Art. 152 of first
schedule of Limitation Act, appeal can be preferred within thirty days from
date of decree or order before Distt. Court--Since
judgment and decree was made on 18.7.2008, therefore, time would be reckoned
from 19.7.2008, excluding the day on which judgment and decree was drawn up and
as such period of thirty days expired on 16.8.2008--Benefit of summer
vacations, even if given, required the petitioners to prefer the appeal against
judgment and decree on first day of Sep. 2008, the day when Courts re-opened. [P. 313] A
Limitation Act,
1908 (IX of 1908)--
----S. 5--Civil
Procedure Code, (V of 1908)--O. XVII, R. 3--Closure of evidence--Suit was
dismissed--Appeal was dismissed being barred by time--Challenge to--Condonation of delay but no sufficient
cause--Validity--Petitioner applied for certified copies of judgment and decree
of trial Court on 13.10.2008 after expiry of period of 3 months--Ground
agitated regarding mis-conception of next date of
hearing has been dealt with finding it un-tenable--No period of limitation was
prescribed at instance of petitioners that no period of limitation was
prescribed in order to assailed the vires of void
order though might not be questioned but the proposition of law cannot advance
plea of petitioners in view of discussion made as judgment and decree cannot be
said to be void--Petition was dismissed. [P.
313] B
Revisional Jurisdiction--
----Revisional jurisdiction can be exercised in case of
non-assumption, illegal assumption or exercise of jurisdiction illegality or
with material irregularity. [P. 313] C
Ch. Manzoor Hussain Basra, Advocate
for Petitioners.
Mr. Abdul Khaliq Safrani, Advocate for
Respondents No. 1 to 3.
Date of hearing:
27.10.2011.
Judgment
Legality and
validity of judgment and decree dated 18.7.2008, recorded by learned Civil
Judge, Pasroor, judgment and decree dated 8.11.2008
recorded by a learned Addl. District Judge Pasroor
dismissing the appeal of petitioners in limine has
been called in question at the instance of petitioners/plaintiffs.
2. Present petitioners, instituted suit for
declaration and perpetual injunction against the Respondents No. 1 to 3
claiming proprietary and possessory rights being collateral of Muhammad Ismail,
father of Respondents No. 1 to 3 and assailing the vires
of Mutation No. 462 dated 16.9.1987 attested in favour
of Respondents No. 1 to 3 by their father i.e. Muhammad Ismail whereby the
property owned by Muhammad Ismail was alienated by him in favour
of his daughters by way of gift.
3. The suit was contested by Respondents No. 1
to 3. Respondents No. 4 & 5 were arrayed as proforma defendants. After casting necessary issues, lis was posted for evidence of petitioners for 30.5.2007.
On 18.7.2008, evidence of petitioners was not in attendance resulting in its
closure and dismissal of suit for want of evidence
under Order XVII, Rule 3 of the Code of Civil Procedure, 1908. The said
judgment and decree was called in question by preferring an appeal on
31.10.2008. Along with appeal, application under Section 5 of The Limitation
Act, 1908 was made. While dismissing the application under
Section 5 of The Limitation Act, the appeal preferred by present petitioners
was dismissed being barred by time vide judgment dated 8.11.2008.
4. Heard.
Learned counsel
for the petitioners maintained that the date i.e. 18,7.2008 was not fixed at
the request of petitioners as is evident from interim order sheet because on
i.e. 14.7.2008 adjourning the suit for 18.7.2008, the learned Presiding Officer
was on leave and suit was adjourned by ministerial staff. Further
maintained that since case was not adjourned at the request of present
petitioners, therefore, penal provision of Order XVII, Rule 3 of the Code of
Civil Procedure, 1908 was not attracted to the facts of the case. Making
reference to the provision of Order XVII, Rule 5 of the Code of Civil
Procedure, 1908, it was argued that since the learned Presiding officer was
absent, therefore, the ministerial staff was required to hand over slip of
paper specifying the next date fixed for the proceedings in the suit. Submitted
that the said mandatory provision was not complied with and as such the order
regarding closure of evidence and judgment and decree passed in pursuance of
said order is legally not sustainable. Further maintained that the Petitioner
No. 1 appeared before learned Civil
Court on 28.6.2008 and Reader of the Court though
adjourned the case to 14.7.2008 but due to misunderstanding he noted the next
date as 14.10.2008 resulting in non-appearance of petitioners on 18.7.2008. submitted that affidavit of Advocate representing the
petitioners is annexed. Learned counsel for the petitioners has placed reliance
on "Nowsheri Khan vs. Said Ahmad Shah"
(1983 SCMR 1092), "Haji Muhammad Ramzan Saifi Vs. Mian Abdul Majid and others"
(PLD 1986 Supreme Court 129), "Kamran Co. and
others vs. Messrs Modern Motors and another" (PLD 1990 Supreme Court 713)
and "Mst. Nazima Batool alias Nazim Batool vs. Sabar Ali Shah"
(2004 CLC 1175).
Questioning the
legality of judgment of learned First Appellate Court, it was maintained that
since the appeal could not be preferred within time due to sufficient cause,
therefore, the time should have been extended while condoning the delay. Continuing
his arguments, learned counsel for the petitioners maintained that learned
First Appellate Court, could not appreciate the implication of Order XVII, Rule
3 of The Code of Civil Procedure, 1908. Submitted that the learned Civil Court as well
as learned First Appellate Court while passing the impugned judgments and
decrees failed to exercise jurisdiction vested in it.
Controverting the arguments,
learned counsel for the Respondents No. 1 to 3 maintained that the petitioners
were provided more than sufficient opportunities to produce evidence but their
failure to produce evidence and that too without any justification resulted in
closure of their evidence. Maintained that learned counsel for the petitioners
was present at the time when the suit was adjourned for 18.7.2008 and as such
the argument regarding misunderstanding of next date of hearing is mis-conceived and ill-founded. Submitted that the appeal
preferred by the petitioners was hopelessly barred by time and as such no
exception can be taken to the judgments impugned before this Court.
5. Perusal of record suggests that issues were
cast by the learned trial Court on 27.3.2007 adjourning the lis
for evidence of petitioners for 30.5.2007.
11 opportunities
were granted to the petitioners for production of evidence barring those when
the Advocates were observing strike and Presiding officer was on leave. Perusal
of order dated 14.7.2008 suggests that on the said date Presiding Officer was
on leave and Reader of the Court, adjourned the suit for 18.7.2008 when
evidence of petitioners was not present leaving no option with the trial Court
but to close the same and dismiss the suit for want of evidence. Though well
settled proposition of law canvassed by the learned counsel for the petitioners
regarding non-implication of penal provision of Order XVII, Rule 3 of the Code
of Civil Procedure, 1908 in the attending circumstances can
not be disputed and as held in the reports relied upon but nevertheless
this fact by itself is not sufficient to set at naught the judgment of learned
trial Court in view of the provision of Order XVII, Rule 1(3) of the Code of
Civil Procedure, 1908 (Lahore High Court Amendment), according to which, where
sufficient cause is not shown for the grant of an adjournment under sub-rule (1),
the Court shall proceed with the suit forthwith. Text of the amendment made by
Lahore High Court and Order XVII, Rule 3 of the Code of Civil Procedure, 1908
is entirely different. The expression "to whom time has been granted"
has been used in Rule 3 of Order XVII but the said expression does not find
mentioned in order XVII, Rule 1(3) of the Code (Lahore High Court Amendment),
according to which where sufficient cause is not
shown for the grant of an adjournment under sub-rule (1), the Court shall proceed
with the suit forthwith. In view of the matter, though the provisions of Order
XVII, Rule (3) of The Code of Civil Procedure, 1908 was not attracted to the
facts of the case but evidence could have been closed in exercise of powers
under sub-rule (3) of rule (1) (Lahore High Court Amendment) if sufficient
cause was not shown. Reliance is placed upon "The Administrator, Lahore
Municipal Corporation vs. Abdul Hamid" (1987 Law
Notes (Lahore)
400), "M/s. A.C.E Enterprises vs. Additional District Judge Lahore and
others" (1987 Law Notes (S.C.) 530) and "Ghulam
Qadir alias Qadir Bakhsh vs. Haji Muhammad Suleman and 6 others" (2002 Civil Law Cases 1111).
Despite availing 11 opportunities, petitioners failed to produce evidence. No
justification was put forward at the instance of counsel for the petitioners in
attendance seeking indulgence of the Court and as such order regarding closure
of evidence could be deemed to be an order under Order XVII, Rule (1)(3) of
Code (Lahore High Court Amendment).
Mention of provision
of law in the order passed by trial Court though not applicable by itself is not sufficient to grant premium to the
petitioners. The argument as such canvassed by the learned counsel for
petitioners though with vehemence can not advance
plea of petitioners. It is to be noted that plea has been taken at the instance
of petitioners that on 28.6.2008, the Petitioner No. 1 appeared before learned
trial Court and Reader of the Court adjourned the suit for 14.7. 2008 but the
Petitioner No. 1 noted the next date as 14.10.2008 due to misunderstanding. In
order to substantiate the said ground, an affidavit sworn to by Mr. Maqsood Ahmed Bhatti, Advocate
has been appended with the revision petition. The contents of
affidavit sworn to by Advocate suggests that Petitioner No. 1 due to
misconception intimated the next date of haring as 14.10.2008, which was
accordingly noted in the diary. The contents of affidavit further suggest that
counsel was not present on 18.7.2008 in the Court when the suit was dismissed for
want of evidence. The reason assigned and argument canvassed on this score
cannot advance plea of petitioners. According to Article 129(e) of the Qanun-e-Shahadat Order, 1984,
presumption of correctness is in favour of judicial
proceedings. Credibility of judicial proceedings was a moot point before the
Apex Court in "Fayyaz Hussain
vs. Akbar Hussain and others" (2004 SCMR 964) in
which it has been held that presumption of correctness is always in favour of judicial proceedings and credibility is attached to
the proceedings before a judicial forum. It was further held that strong and
un-impeachable evidence is required to rebut the presumption. Reference may
also be made to "Chiragh Din vs. Mumtaz Ali and another" (2009 PCr.LJ
126). It is to be noted that perusal of orders dated 28.6.2008,
14.7.2008 and 18.7.2008 suggest that counsel for the parties were present.
Affidavit sworn to by counsel statedly representing
the petitioners before trial Court that he was not in attendance on 18.07.2008,
as such can not advance the plea of petitioners in
view of rule of law expounded in "Fayyaz Hussain" in which an affidavit was sworn to by the
counsel and while disbelieving it, it was held that giving preference to
affidavit of counsel over judicial proceedings would leave to a large number of
complications. Argument canvassed with reference to non-compliance of provision
of Order XVII, Rule 5 of the Code of Civil Procedure, 1908 also can not advance
plea of petitioners for the simple reason that on 18.7.2008, counsel for
parties were marked present. Wisdom and object behind the said provision of law
is to intimate the party regarding next date of hearing in absence of Presiding
officer. Since learned counsel for the petitioners was present on 18.07.2008
attracting penal consequences therefore omission if any, will not advance plea
of petitioners.
6. The impugned judgment and decree was drawn up
on 18.7.2008 while the petitioners preferred the appeal on 31.10.2008.
According to Article 152 of the first schedule of the Limitation Act, appeal
can be preferred within thirty days from the date of decree or order before
District Court. Since the judgment and decree was made on 18.7.2008, therefore
time shall be reckoned from 19.7.2008, excluding the day on which judgment and decree
was drawn up and as such the period of thirty days expired on 16.8.2008.
Benefit of summer vacations, even if given, required the petitioners to prefer
the appeal against the judgment and decree on the first day of September 2008,
the day when the Courts re-opened. It is to be noted that petitioners made
application for obtaining certified copies on 13.10.2008, as referred to by the
learned 1st appellate Court when admittedly the period of 30 days was expired.
Admittedly, the appeal preferred by present petitioners was barred by time.
Though the petitioners made an application under Section 5 of the Limitation
Act for condonation of delay but the reason assigned
in Para 2 of the said application can not be said to be a "sufficient cause" within
the meaning of Section 5 of the Limitation Act. Even otherwise, petitioners
applied for certified copies of judgment and decree of trial Court on
13.10.2008 after expiry of period of 3 months. Ground agitated regarding mis-conception of next date of hearing has been dealt with
finding it un-tenable. Argument canvassed at the instance of petitioners that
no period of limitation is prescribed in order to assail the vires of void order though may not be questioned but said
proposition of law cannot advance the plea of petitioners in view of discussion
made above as the judgments and decrees can not be
said to be "void".
7. Revisional
jurisdiction can be exercised in case of non-assumption, illegal assumption or
exercise of jurisdiction illegally or with material irregularity.
8. Pursuant to above discussion one can not point out any jurisdictional defect within meaning
of Section 115 of the Code of Civil Procedure, 1908 in the impugned judgments
and decrees. In view of above state of facts and law, revision petition being
devoid of force is hereby dismissed.
9. The petitioners deposited security to the
tune of Rs. 3000/- Vide order dated 27.2.2009 with Deputy Registrar (J) of this
Court. Since the revision petition has been dismissed having no merits,
therefore, Respondents No. 1 to 3 are entitled to withdraw the same as costs
deposited in compliance of order dated 27.02.2009.
(R.A.) Petition
dismissed
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