Wednesday, 16 May 2012

Judgment on Revisional Jurisdiction

PLJ 2012 Lahore 308

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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