Form No.

HCJDA-38

JUDGMENT SHEET
IN THE LAHORE HIGH COURT,
BAHAWALPUR BENCH, BAHAWALPUR
JUDICIAL DEPARTMENT

Civil Revision No. 554-D of 2020

Atta Elahi
Versus
Allah Bachaya etc.

JUDGMENT
Date of hearing: 01.04.2022
Petitioner(s) by: Sardar Muhammad Akram Balouch,
Advocate
Respondent (s) by: Mr. Ahmad Mansoor Chishti,
Advocate.

SULTAN TANVIR AHMAD, J:- Present civil revision filed

under section 115 of the Code of the Civil Procedure, 1908 (the
‘Code’) is directed against the judgment and decree dated
23.11.2019 passed by learned Additional District Judge,
Bahawalpur, whereby the appeal against judgment and decree
dated 24.06.2019 passed by learned Civil Judge, Bahawalpur has
been dismissed.
2. At the joint request of the learned counsel for the
parties, this case is being treated as pacca case.
3. The facts, necessary for the disposal of the present
petition, are that on 07.04.2014 petitioner filed suit for
declaration claiming ownership of 10 marlas house, as further
described in the suit (hereinafter called as the ‘Suit Property’).
This suit was contested by respondent No. 1 by filing contesting
written statement whereas, respondent No. 2 filed conceding
written statement and respondent No. 3 partly refuted the fact
narrated in the suit. The learned trial Court framed the following
 2
Civil Revision No. 554 of 2020

issues, on the disputed questions of law and facts emerging from

the pleadings, vide order dated 15-04-2017:-
1. Whether the plaintiff is owner in
possession of disputed house vide
agreement of Tamleek executed by
defendant No. 2 in her favour on
05.04.2014? OPP.
2. Whether defendant No. 1 is in illegal
possession over half portion of
disputed property measuring 05-
marlas? OPP.
3. Whether plaintiff is entitled to a decree
for declaration and possession along
with consequential relief as prayed for
regarding suit property? OPP.
4. Whether plaintiff has got no cause of
action and locus-standi to sue the
defendant No. 1? OPD-1.
5. Whether defendant No. 1 is owner in
possession to the extent of half portion
of disputed property for last 23-years?
OPD-1.
6. Whether suit of the plaintiff is false,
frivolous and liable to be dismissed
with special costs u/s 35-A CPC?
OPD-1.
7. Relief.
4. Upon failure to produce evidence, on several
dates of hearing, the learned trial Court closed the right of
the petitioner to produce evidence, invoked the provision
of Order XVII Rule 3 of the Code and proceeded to decide
the suit forthwith. The learned trial Court gave issue wise
findings and eventually dismissed the suit with costs on
24.06.2019. This judgment was assailed, by the petitioner,
through civil appeal No. 90 of 2019 dated 04.07.2019 and
the learned Appellate Court vide its detailed judgment
dated 23.11.2019 dismissed the appeal and upheld the
decision of the learned trial Court. Aggrieved from the
same the present revision petition has been filed.
 3
Civil Revision No. 554 of 2020

5. Sardar Muhammad Akram Balouch,

Advocate, the learned counsel for the petitioner while
relying upon cases titled “Syed Tasleem Ahmad Shah
Versus Sajwala Khan etc.” (1985 SCMR 585),
“Muhammad Aslam Vs. Nazir Ahmad” (2008 SCMR
942), “Rana Tanveer Khan Vs. Naseer-ud-Din and
others” (2015 SCMR 1401) and “Mst. Sadia Jamshaid
Vs. Province of Punjab and another” (2020 CLC 1972),
has argued that as the petitioner-plaintiff was present
before the learned trial Court, on the last date of hearing,
therefore, recourse under Order XVII Rule 1 of the Code
should have been adopted; that before closing the right of
evidence the learned trial Court was required to invite the
petitioner-plaintiff to give her evidence before proceeding
further with the matter. The learned counsel for the
petitioner has further argued that by curtailing the
evidence of the petitioner, the learned Courts below have
denied the substantial rights of the petitioner on the basis
of technicalities; that the impugned judgments and decrees
are contrary to Article 10-A of the Constitution of Islamic
Republic of Pakistan, 1973.
6. Conversely, Mr. Ahmad Mansoor Chishti,
learned counsel for respondents has opposed this revision
petition and it has been argued that the clear warning was
given before adopting penal measures under Order XVII
Rule 3 of the Code; that the adjournments were granted,
on successive dates of hearings, at the request of the
petitioner and sufficient material was available with the
Court to give findings as to the issues, hence the two
requirements of law: (i) the adjournment must have been
at the instance of the party, and (ii) there must be material
on record for the Court to proceed to decide the suit, were
completely fulfilled, therefore, no irregularity or illegality
 4
Civil Revision No. 554 of 2020

has been committed by the learned Courts below. In this

regard, the learned counsel has relied upon case titled
“Brojendra Nath Ganguly Vs. Promatha Bhusan Dev and
others” (AIR 1933 Calcutta 412).
7. I have heard the arguments of the learned
counsel for the parties and with their able assistance the
record has been perused.
8. The order sheet appended with this civil
revision reflects that the issues were framed on 15.04.2017
and the provisions of Order XVII Rule 3 of the Code were
invoked on 24.06.2019. In this period, spreading over two
years, the case was fixed for numerous dates of hearing,
out of which about seventeen (17) adjournments were
sought by the petitioner’s side for the purposes of
examination of their witnesses. There is hardly any
adjournment sought by the respondent side. On several
hearings not just warnings were given but thrice the cost
was imposed on the petitioner for failure to examine the
witnesses. It is apparent from the record that to delay the
matter the petitioner and her lawyer have adopted a
strategy whereby on some dates of hearing the learned
counsel absented himself and whenever he was available,
the witnesses were not present. This left the learned trial
Court with barely any alternative but to proceed and
decide the case, as per the law.
9. Order XVII of the Code reads as follows:-
“1. xxx
2. xxx
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
witness, or to perform any other act
necessary to the further progress of the
suit, for which time has been allowed,
 5
Civil Revision No. 554 of 2020

the Court may, notwithstanding such

default, proceed to decide the suit
forthwith”.
4. xxx
5. xxx.
(Emphasis supplied)
10. The afore reproduce provision of law clearly
reflects that when specific date of hearing is fixed or time
is granted to any party of the suit, to produce evidence or
to cause attendance of the witnesses or to perform other
act(s) necessary for the progress of the suit, it becomes
obligation of the party concerned to take efficient
measures towards the same and when this step is to
produce evidence or cause the attendance of the witnesses,
hardly any choice is left with the litigants but to comply
with the orders. The avoidance of order to produce
evidence or to cause attendance of witnesses, the Court is
required to proceed further and in appropriate
circumstances / cases, the Court is fully empowered to
settle the issue and decide the case. The Honourable
Supreme Court of Pakistan in various cases including
“Syed Tahir Hussain Mehmoodi and others versus Agha
Syed Liaquat Ali and Others” (2014 SCMR 637) and
“Moon Enterprises CNG Station, Rawalpindi versus Sui
Northern Gas Pipelines Limited through General
Manager, Rawalpindi and another” (2020 SCMR 300)
has already issued the comprehensive guideline, about the
circumstances and instances, when it befalls unjust to pass
any order leaning in favour of delinquent litigants causing
delays in further progress of the case.
11. Now coming to the stance of Sardar
Muhammad Akram Balouch, learned counsel for the
petitioner, who has argued that since the plaintiff was
present before the learned trial Court, on the day when
judgment was passed, therefore, without inviting the
 6
Civil Revision No. 554 of 2020

plaintiff to record her evidence, the decision on the merits

is illegal. In this regard, it can be noticed that the
Honorable Supreme Court of Pakistan in “Syed Tahir
Hussain Mehmoodi case (Supra) and case titled “Rana
Tanveer Khan Vs. Naseer-ud-Din and others” (2015
SCMR 1401), while requiring the Courts to invite the
present witnesses, to record the evidence before decision
on merits, has also settled that the Courts must ensure that
when the penal provisions of Order XVII Rule 3 of the
Code squarely applies to the case of a delinquent litigant
then no concession should be shown to such litigant nor
any lenient view in his favour should be adopted. Here it is
beneficial to reproduced paragraph No. 4 of Syed Tahir
Hussain Mehmoodi and others case (Supra):-
“4. Notwithstanding our refraining to
interfere in the matter on account of the
above, we are of the candid view that
provisions of Order XVII, Rule 3, C.P.C. are
penal in nature and as per the settled law
such provisions should be strictly construed
and applied, therefore once the case of a
delinquent litigant squarely falls within the
purview and mischief of the law (ibid) then
neither any concession should be shown to
such litigant nor a lenient view favouring
him should be resorted to; this should not
even be permissibly done on the touchstone
of exercise of discretionary power of the
Court and/or on the approach that
technicalities of procedure should not be
allowed to impede the interest of justice,
and/or that the litigants should not be
knocked out on technical grounds, and that
adversarial lis should be settled on merits.
If such approach is liberally followed and
resorted to there shall be no discipline in the
adjudication of the civil litigation and the
delinquent whose case though is squarely hit
and covered by the penal provisions of
Order XVII, Rule 3, C.P.C. would be given a
chance to his advantage and to the
disadvantage of his opposing side. This is not
the spirit of the law at all. It may not be out of
 7
Civil Revision No. 554 of 2020

place to mention here that to apply and to

adhere to law is not a mere technicality,
rather it is duty cast upon the court as per
Article 4 of the Constitution of Islamic
Republic of Pakistan, 1973 to do so. Thus
where Order XVII, Rule 3, C.P.C. is duly
attracted, the Court has no option except to
take action in accord therewith”.
(Emphasis Supplied)
12. The august Supreme Court of Pakistan Moon
Enterprises CNG Station, Rawalpindi case (Supra) has
further discouraged the trend of granting successive
opportunities for production of evidence without sufficient
and just cause. Undue adjournments, causing delay in
proceedings without any valid or legitimate reason, are firmly
prohibited. It will be advantageous to reproduce the
following extract from Moon Enterprises CNG Station,
Rawalpindi case (Supra):-
“In our view it is important for the purpose of
maintaining the confidence of the litigants in the
court systems and the presiding officers that
where last opportunity to produce evidence is
granted and the party has been warned of the
consequences, the court must enforce its order
unfailingly and unscrupulously without
exception. Such order would in our opinion not
only put the system back on track and reaffirm
the majesty of the law but also put a check on the
trend of seeking multiple adjournments on
frivolous grounds to prolong and delay
proceedings without any valid or legitimate
rhyme or reason. Where the Court has passed an
order granting the last opportunity, it has not
only passed a judicial order but also made a
promise to the parties to the lis that no further
adjournments will be granted for any reason.
The Court must enforce its order and honour its
promise. There is absolutely no room or choice
to do anything else. The order to close the right
to produce evidence must automatically follow
failure to produce evidence despite last
opportunity coupled with a warning. The trend
of granting (Akhri Mouqa) then (Qatai Akhri
Mouqa) and then (Qatai Qatai Akhri Mouqa)
make a mockery of the provisions of law and
those responsible to interpret and implement it.
 8
Civil Revision No. 554 of 2020

Such practices must be discontinued,

forthwith.”
(Emphasis Supplied)

13. As already discussed, about seventeen (17)

opportunities for the purpose of examination of witnesses
and / or production of evidence are granted, at the request
of the petitioner’s side. On 14.12.2017 when the witnesses
were present, the portioner-lady herself addressed the
Court and sought an adjournment while stating that her
learned counsel was busy in other cases, upon which very
last opportunity was granted by the learned Court, in her
presence. On 10.02.2018 again the learned counsel
requested for the adjournment when his witnesses were
not available.
14. The above position persisted for several
subsequent dates of hearing; on some of the said dates
either only partial evidence was available or the learned
counsel used to be absent. This continued until
09.05.2019. The reading of the order sheet reflects that
somehow the learned trial Court remained helpless,
waiting for the petitioner or her evidence or her learned
counsel and even imposing the minor costs and / or
penalties could not be of assistance, when the following
order was passed:-

‫"کونسل فریقین حاضر۔ گواہان حاضر۔‬

‫کونسل مدعیہ بیانی ہے کہ وہ بوجہ رمضان المبارک کمی‬
‫وقت عدالت کی وجہ سے شہادت کیلئے تیار نہ ہیں۔ التوا‬
‫دی جاوے۔ کونسل مدعاعلیہم شدید معترض ہیں بغرض‬
‫انصاف گواہان کو پابند کیا جا کر صرف ایک قطعی‬
‫آخری موقع دیا جاتا ہے۔ شہادت آئیندہ پیشی پر قلمبند نہ‬
‫کرانے کی صورت میں کلوز کر دی جائیگی۔ ملتوی ہو‬
"‫ پیش ہوے۔ سنایا گیا۔‬20.06.19 ‫کر بتقرر‬
 9
Civil Revision No. 554 of 2020

15. The case was fixed for 20.06.2019 however,

regrettably the same position continued, when the learned
trial Court had to observe that the petitioner side despite
warning is not willing to get the evidence recorded but
somehow once again absolute last opportunity ) ‫'حتمی قطعی‬
'‫ ( آخری موقع‬was granted to get the evidence recorded on
24.06.2019. It is apparent from record that cautions
already taken by the learned trial Court were more than
even permissible by law settled by the Honourable
Supreme Court. Finally, on 24.06.2019 at 8:20 a.m. when
the petitioner was present in person, she was reminded
about the fact that this was the last chance for the evidence
and the case was fixed at 09:30 a.m. when petitioner opted
to disappear, making the Court wait until 02:45 p.m. The
learned trial Court was left with no option but to give
following finding and then passing the judgment and
decree:-
“2:45 P.M.
Now it is 2:45 P.M the case is called time and
again after 09:30 A.M but the PWs were not
in attendance. Now the plaintiff has turned up
along with her PWs and she has made a
request for an adjournment which is hotly
opposed on behalf of the defendant No.1.
Now only 45 minutes are remaining, the
plaintiff was asked to produce her counsel
and adduce the evidence but she made a
request for an adjournment and submitted
that her counsel is busy before some other
courts. The suit in hand belongs to 2014
wherein issues were settled on 15.04.2017.
After excluding the strikes etc. 16 clear
opportunities were given to the plaintiff and
on all dates of hearing adjournments were
obtained by plaintiff herself one and the other
pretext. Although, on most of the date of
hearing the witnesses of the plaintiff were in
attendance but the interlocutory orders
reflects that the date of hearing were
obtained by the plaintiff herself and not by
the other side.
 10
Civil Revision No. 554 of 2020

As I have discussed above that on last

date of hearing the date of hearing was fixed
for today with time i.e. 9:30 a.m. Now court
time is about to end and the plaintiff is not
willing to examine her witnesses, therefore,
this court has left with no other option except
to invoke the provision of Order 17 Rule 3
CPC, 1908. Hence, the right of the plaintiff
for examining the PWs is closed”.
16. Sardar Muhammad Akram Balouch, learned
counsel for the petitioner during the course of arguments
has repeatedly relied upon case titled and “Syed Tahir
Hussain Mehmoodi case (Supra), but I am afraid that the
said judgment does not support the interpretation of Order
XVII Rule 3 of the Code put forth by the learned counsel
or the petitioner. In my opinion, the learned trial Court
before invoking the provisions of Order XVII Rule 3 of
the Code and passing the judgment has already taken
excessive precautions and granted more than essential
opportunities to the petitioner.
17. The learned counsel for the petitioner
miserably failed to make out any case of want of exercise
of jurisdiction or excess of jurisdiction or illegality
requiring interference in the concurrent judgments and
decrees passed by the learned Courts below.
Consequently, the present civil revision is dismissed, with
no order as to costs.

(SULTAN TANVIR AHMAD)

JUDGE

Irfan Shah