Qazi Ghulam Vs Naimatullah

SHEET

IN THE PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(ludicial Department) C.RNo. 1 04-N2023

Qazi Ghulam Kibriya Qureshi.

(Petitioner/s)

VS

Naimatullah.

(Respondent/s)

Present; Muhammad Zubair Khan Jadoon, Advocate, for petitioner.

Mr. Mazhar Farooq Tanoli, Advocote, for respondent.

Dates of hearing: 02.06.2025

JUDGMENT

AURANGZEB, J.- Through the instant civil revision petition, the petitioner/plaintiff has challenged the judgment &, decree of learned Additional District Judge-VI, Haripur dated 19.07.2022, whereby, appeal filed by the present petitioner was dismissed and thereby maintained the order/judgment the trial Court dated 17.03.2021who vide the same had dismissed the suit of petitioner/plaintiff.

) Precisely, the facts of the case leading to the filing of the instant civil revision petition are that the petitioner/ plaintiff brought a suit for possession through pre-emption in respect of suit property, detail

of which is fully mentioned in the heading of the plaint, which suit was duly contested by the present respondent then defendant by filing written statement' In view of the pleadings of the parties, the learned trial Court framed issues and thereafter the parties were asked to produce their respective evidence, however, partial evidence was recorded and during the course of cross examination of oral witnesses of petitioner/, neither plaintiff nor his counsel appeared before the learned trial Court and ultimately the learned trial Court dismissed the suit of petitioneriplaintiff under Order 17 Rule 3 CPC vide order/judgment dated 17 .03.2021. The petitioner/ plaintiff being aggrieved of the aforesaid order/judgment preferred an appeal, however, the same was also dismissed by learned Additional District Judge-VI, Haripur vide the second impugned judgment and decree dated 29.04.2021 which orders/judgments and decree have now been challenged by the petitioner/ plaintiff through the instant revision petition.

3.Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.

J

4.The record would clearly show that the learned trial Court, through the impugned order and judgment dated 17.03.2021, dismissed the suit filed by the petitioner/plaintiff under Order XVII Rule 3 of the Civil Procedure Code (CPC). The dismissal was primarily on the grounds of non-prosecution as well as non-compliance with the Court's prior orders.

Furthermore, the Court imposed a cost of Rs. 5,000/- upon the petitioner/plaintiff for the delays and failures in the proceedings.

5.A careful examination of the case record further reveals that on 30.09.2020, the petitioner/plaintiff failed to appear for the recording of his oral evidence. Subsequently, the order dated t0.10.2020 also reflects that the petitioner/plaintiff remained absent on that date as well, resulting in the oral evidence not being recorded. The order sheet dated 19.02.2020 discloses that the case had been adjourned on an application filed by the petitioner's counsel, citing the petitioner's ailment as the reason for the postponement. Despite the adjoumment being granted, it was with a strict direction from the Court that the petitioner/plaintiff s witnesses must be produced on the next date for the cross-examination to proceed. However, the witnesses again remained

absent on 19.01 .202L As a consequence, the Court issued a formal notice under Order XVII Rule 3 CPC to the petitioner/plaintiff, directing him to ensure the presence of all his witnesses for cross-examination on the date fixed

5.Further scrutiny of the record shows that on 08.02.2021, the witnesses of the petitioner/plaintiff could not be cross-examined due to the submission of an application for adjournment by the petitioner's counsel. In response, the learned trial Court extended the notice under Order XVII Rule 3 CPC and imposed a cost of Rs. 1,000/- on the petitioner/plaintiff for the adjoumment. The record further reflects that on 23.02.2021, the petitioner/plaintiff once again failed to produce the witnesses required for cross-examination.

On that day, the learned trial Court dismissed the petitioner/plaintiffls application seeking to procure evidence regarding the CNIC of the

respondent/defendant through the Court's process. The Court observed that the petitioner/plaintiff had failed to produce his witnesses for cross-examination since 21.07.2020. Despite this prolonged default, the Court granted a final opportunity to the petitioner/plaintiff to produce his witnesses, subject to a cost of Rs. 1,000/-, and extended the notice under Order XVII Rule 3

CPC. The Court explicitly warned that failure to comply with the order and produce the evidence would result in dismissal of the suit for non-compliance. On 04.03 .2021, the petitioner/plaintiff was absent again from the proceedings. Nonetheless, the Court extended yet another opportunity, allowing the petitioner/plaintiff to produce the entire evidence on the next date, i.e., 17.03.2021, and extended the notice under Order XVII Rule 3 CPC once more.

Z However, even on the adjourned date of 17 .03.2021, the petitioner/plaintiff again failed to produce his witnesses for cross-examination.

Consequently, the learned trial Court, invoking the provisions of Order XVII Rule 3 CPC, dismissed the suit of the petitioner/plaintiff through the impugned order and judgment dated 17.03.2021.

E In light of the above, the record unequ ivocal ly demonstrate s that the petiti oner/pl aintiff was afforded ample and repeated opportunities by the learned trial Court to produce evidence and comply with the Court's directions. Despite this, the petitioner/plaintiff consistently failed to prosecute the case diligently and did not comply with Court orders.

It is also pertinent to note that the suit for pre-emption

was originally filed in the year 2014, and the protracted delay in prosecution, coupled with non- compliance, culminated in the dismissal of the suit after nearly seven years. The conduct of the petitioner/plaintiff throughout these proceedings is clearly reflected in the record. Therefore, the learned trial Court rightly exercised its discretion in dismissing the suit for non-prosecution and non-compliance with Court orders. Moreover, the learned appellate Court has correctly upheld the trial Court's decision, finding no illegality or irregularity in the impugned judgment.

In the case of "Moon EnterPriser C Rawaloindi vs. Sui Northern Gas Pipelines Limited throush Gen eral Manaser. Rawalpindi und unother" reported as 2020 SCMR 300 the Hon'ble Apex Court has held as that "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 fo, qny 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 opportuniQ coupled with a warning. The trend of granting (Akhri Mouqa)

'tr 'illx 'Oto sw,t4 w pasop sowtrttulo1dlo acuapr^a uaqll 'rutq $u!o8o ua4o7 aq iloqs uorlco 'acuaputa acnppz o7 pa11ot aq lt wqt acuou ot rud sou lfitu1o1d aql ryry luoaru qclqL'sttotsocco qcns o44l uo pauorynoc sow puo acuapaa sru acnpo"td of saqrun4,toddo tnot palru^o pDq ruoiladdo-[1tulop ary 'asoc Tuasatd ary uJ zt1rum4.toddo 1so1 aql Swaq so '(s)a4op qcns /o auo uo pansfl oslp sD$ uo!ruD) puD pafa^D uaaq poq,fi.tod aqlto $anba"t aqt uo sal4unqtoddo aqonbapo uaqlw sazuolsrunc"il.c aw ul rQlonadsa 'pap0"4l0 aq pruoc ')'d? '€ 'A 'II4;X 'O lo suorcra.o.td aqt '(s)app qcns tot 'os op ot paryDt tl -fr puo acuapma Swcnppo to sasod.md aW nl $)asop nqttnt o ot railoru aqt Sutumo[po ,tol $anbat D aparu r(l"tod aqt a.DqM 'tatauo11 'unoC aW tq uoucailp qsaq Kuo Suraq aaqt tnoqrt acuapaa acnppo ot uorto7rno aW poq tl.rud aqt puD 'lntpaau ary op ot t,,tnoJ ary to uoryca"up ary sDA4. tl 't1.tod aql lo a)uapt^a ary Surp'toca.t rct uno3 ary ,Q pax{ sDtL asDc aqt acuo,, }eql pleq ueeq seq tl ffi se pePoder lsDtlro pul) u1q-pn-taasoN 'sA uotlN DaiuoJ ttu0a, Jo esBc eql ur'r(1;e1rur \S' qU Mqt.tot' panutruo c stp a q $nlu sa u\co,td qcns 'U ruaruqdrut puo Tatdn4ur ot alqlsuodsa"t asoql puo tutol to suotsrd.o,td aql lo ttaqcoru D ayaltt (obnoyg UTLV PwA PwA) uaqt puo (obnoyy ?tWtY to1ofi) uaqt

L

3, C.P.C. no reasonable ground was propounded for the purposes of failure to adduce the evidence and justificotion for further opportunity, therefore, notwtthstanding that such opportunities granted to the plointiff were only in a span of about I month and 26 days, yet his case squarely fell within the mischief of the provisions of O. Xl4I, R. 3, C.P.C. and his evidence was rightly closed by the Trial Court. Further reliance can be drawn from the judgment titled "Shahz.ada Room and others vs. sul Hilal and others" reported as 2022 CLC 659.

9 It is well settled that the High Court's jurisdiction under Section 115 of the C.P.C. is limited in cases of concurrent findings by competent Courts. It can only intervene if there are serious legal flaws, such as insufficient evidence, misreading or ignoring material evidence, reliance on inadmissible evidence, abuse of jurisdiction, or perverse conclusions. Mere disagreement with factual findings or reappraisal of evidence does not justiff interference unless there is gross misreading or overlooking of crucial evidence. In the case of "Aamir Afzal and er vs. S. Akmal (deceasedl through L.Rs and 2 others" reported as 2024 SCMR 1649 the Hon'ble Apex Court has held that;

uWhile exercistng iurisdiction under Article 115 of the C.P.C. the High Court has to first satisfy itsetf. (i) that the order of the subordinate court is within its jurisdiction, (ii) that the case is one in which the court oaght to exercise iurisdiction; and thut in exercising iurisdiction that court has not acted illegally, that is, in breach of some provisions of law, or with material iruegularity by committing some eruor of ptocedure in the course of the trial which is material in that it may have affected the ultimate decision. Section 115 applies only to cases in which no appeal lies, and where the legislature has provided no right of appeal. The mandest intention of the legislature is that the order of the trial court, right or wrong, shall be final, except in speciiic circumstances. It is, therefore, obvious that unless the case is not covered under Section 115 of the C.P.C. and the High Court was satisJied in this regard, then in such a case no poteer could be exercised to interfere simply because it dffirs, however profoundly, with the conclusions of the subordinate court regarding questions of law and facts.

Kanwal Nain and others v. Fateh Khan and others PLD 1983 ,SC 53 and Umar Dad Khan und another v. Tila Muhammad Khan and others PLD 1970 SC 288 ref, The scope of jurisdiction of the High Court under Section ll5 of the C.P.C. is limited in relation to concarrent Jindings of the competent courts. The exceptions to this rule ore when the ftndings are based on insufJicient evidence, misreading of evidence, non- consideration of material evidence, patent eruors of law, consideration of inadmissible evidence, abuse of jurisdiction, and when the conclusions drawn are perverse and based on coniectural presumptions. The erroneous decisions of fact are ordinarily not revisable and the mere fact that the High Court may differ on a qaestion of fact or mixed question of law and fact is not a volid ground for interfering with concuruent Jindings. Moreover, the concurrent findings recorded on the basis of evidence are not susceptible to further review to justify interference by the High Court in revisional jurisdiction. The interference by a High Court in such jurisdiction would not be justiJied on the ground that reappraisal of evidence might suggest another view of the matter unless there has been a gross misreading of evidence and materiol evidence was ignored".

10.In this case, the two Courts below have concuffently recorded their findings of facts and law,

which this Court found them as perfectly in accordance with the available evidence of the parties and thus the same neither suffer from any misreading or non- reading of evidence nor the same suffer from any illegalities or material irregularities, so as to warrant the interference of this Court in a revisional jurisdiction under section 115 CPC. The scope, extent and domain of revisional jurisdiction of this Court has elaborately been dilated upon by the Hon'ble Apex Court in the case of "Nasir Ali vs. Muhammad Asphar" reoorted as 2022 SCMR 1054 that section I15, C.P.C empowers and mete out the High Court to -l

satisfi and reossure itself that the order of the subordinate Court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material iruegulariQ or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. The scope of revisional jurisdiction is limited to the extent of mtsreading or

non-reading of evidence, iurisdictional error or an illegality of the nature in theiudgment which may have material effect on the result of the case or f the conclusion drawn therein is perverse or conflicting to the law. Furthermore, the High Court has very limited jurisdiction to interfere in the concurrent conclusions arrived at by the courts below while exercising power under section l15, C.P.C. Similarly, in the case of "Salamat Ali and others vs. Muhammad and others" reported as PLD 2022 Supreme Court 353, it was also held that a revisional Court cannot upset a finding offact of the Court(s) below unless thot finding is the result of misreading, non'reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely fu the reason that it finds its own fi,nding more plausible than that of the Court(s) below. Similar view also reiterated by the Hon'ble Apex Court in the case of "Muhammad Sarwar and others v "

PLD 2022 Supreme Court 13, where in para-6 it was held that it is well settled exposition of law, deducible fro* plethora of dictums laid down by superior Courts that section l15, C.P.C. empowers and meted out the High Court to satisfu and reassure itself that the order

t2

of the subordinate court is withtn its iurisdiction; the case ,s one in which the Court ought to exercise jurisdictton and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions offact or law.

11 In view of the above discussion, the impugned judgments/orders passed by learned fora below are neither the result of misreading and non- reading of evidence nor the petitioner could point out any material irregularity nor jurisdictional defect in the same, therefore, the same are upheld and maintained and consequently the instant revision petition is dismissed.

Announced r> h

Tahir Saleem ?a

JADGE