Messrs AG SIGNS (PVT.) LTD.

----Petitioner Versus GASHOO ADVERTISER----Respondent

Citation: 2024 CLC 1486

Result: Revision Dismissed
Court: Lahore High Court Rawalpindi Bench
Date of Decision: 8.5.2024.
Judge(s): Jawad Hassan, J
Case Number: Civil Revision No.449-D of 2017
JUDGMENT

Case Summary

Facts:

The respondent filed a suit against the petitioner for recovery of a

certain amount.
The petitioner failed to produce evidence despite multiple
adjournments granted by the trial court.
The trial court closed the petitioner's right to produce evidence and
decreed the suit in favor of the respondent.
The petitioner's appeal before the Additional District Judge was also
dismissed.

Holding:

The High Court dismissed the petitioner's revision petition, upholding the
judgments of the lower courts.

Reasoning:

1. Closure of Right to Produce Evidence: The court held that the

trial court was justified in closing the petitioner's right to produce
evidence under Order XVII, Rule 3 of the Code of Civil Procedure
(C.P.C.). The petitioner was granted multiple adjournments but
consistently failed to produce evidence, despite clear warnings
from the court.

2. Concurrent Findings of Fact: The court noted that both the

trial court and the appellate court had arrived at concurrent
findings of fact, which are generally not disturbed in revisional
jurisdiction. The petitioner had failed to demonstrate any material
irregularity or misreading of evidence by the lower courts.

3. Admitted Facts: The petitioner had admitted certain facts, such

as the execution of an agreement and the receipt of payments,
which further strengthened the respondent's case.

Legal Principles:
 Order XVII, Rule 3, C.P.C.: This rule empowers the court to
proceed with the suit if a party fails to produce evidence despite
being granted time.
Concurrent Findings of Fact: Concurrent findings of fact by lower
courts are generally upheld in revisional jurisdiction unless they are
based on misreading or non-reading of evidence or are contrary to
law.

Conclusion:

The court emphasized the importance of adhering to court orders and

producing evidence within the stipulated time. The petitioner's failure to
do so resulted in the dismissal of the case.

JUDGMENT

JAWAD HASSAN, J.---M/s AG Signs (Pvt.) Ltd. (the "Petitioner") has

filed this Civil Revision under Section 115 of the Code of Civil Procedure
(V of 1908) (the "C.P.C.") challenging judgment and decree dated
11.03.2017 whereby learned Additional District Judge, Rawalpindi, while
dismissing its appeal upheld the judgment and decree dated 23.01.2013
passed by learned Civil Judge Rawalpindi. Besides, the "Petitioner" has
also challenged order dated 15.01.2013, whereby his right to produce
evidence was closed.

I. BRIEF

2. The background of the present controversy is that Gashoo Advertiser

(the "Respondent") filed a suit for recovery of Rs.1,06,45,000/- on
17.07.2008 against the "Petitioner" who stormily contested it by filing a
written statement on 06.04.2009 before the trial Court. The issues were
framed by the trial Court vide order dated 08.02.2010 and the case was
fixed for the evidence of "Respondent" which was completed on
05.11.2012 and later the case was adjourned for evidence of the
"Petitioner". However, despite availing numerous opportunities to produce
evidence, the "Petitioner" remained failed and the trial Court vide its
order dated 15.01.2013 closed the Petitioner's right to produce evidence
and fixed the case for final arguments on 17.01.2023. Ultimately the suit
was decreed partially vide judgment and decree dated 23.01.2013. Being
dissatisfied, the "Petitioner" filed appeal before the Additional District
Judge, Rawalpindi which was dismissed vide judgment and decree dated
17.03.2017. Hence this petition.

II. SUBMISSIONS OF THE PETITIONER

3. Barrister Talha Ilyas Sheikh, counsel for the "Petitioner" has inter alia
argued that before closing the right of evidence, the trial Court was
required to provide ample opportunities as afforded to the "Respondent";
that judgments and decrees of both the Courts below are the result of
gross mis-reading and non-reading of evidence; that by closing the
evidence of the "Petitioner", the Courts below have denied the substantial
rights to the "Petitioner" on the basis of technicalities. He has relied on
"Hasham Khan and others v. Haroon ur Rashid and others" (2022 SCMR
1793), "Sheikh Khurshid Mehboob Alam v. Mirza Hashim Baig and
another" (2012 SCMR 361), "Hamidullah Khan and another v. Ch.
Muhammad Jameel and others" (2003 SCMR 995), "Muhammad Yaqoob
and others v. Raheela Yousaf and others" (2024 CLC 49), "Sohail Niaz Gill
v. Senior Civil Judge, Islamabad and others" (2023 MLD 708) and "Messrs
Ijaz Nizam v. NIB Bank and others" (2017 CLD 361).

III. SUBMISSIONS OF THE RESPONDENT

4. Conversely, Ms. Elysee Nazir, Advocate counsel for the "Respondent"

supported the impugned judgments and decrees and, while resisting the
instant petition, submitted that there are concurrent findings of facts
recorded by both the Courts below which are based on proper appraisal of
evidence and unless some material illegality or irregularity is pointed out,
the same cannot be interfered with in revisional jurisdiction. She argued
that the "Petitioner" was found responsible for prolonging the matter on
various pretexts. She has relied on "Muhammad Sarwar and others v.
Hashmal Khan and others" (PLD 2022 Supreme Court 13), "Mst. Zarsheda
v. Nobat Khan" (PLD 2022 Supreme Court 21), "Shahbaz Gul and others v.
Muhammad Younas Khan and others" (2020 SCMR 867) and "Cantonment
Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq
Ahmed and others" (2014 SCMR 161).

5. I have heard learned counsel for both the sides at considerable length
and also perused the record with their assistance.

IV. DETERMINATION

6. The record indicates that initially, the evidence of the "Respondent"

was completed on 05.11.2012, and the case was adjourned to 13.11.2012
for the evidence of the "Petitioner". To gain a proper understanding of the
controversy, the proceedings on subsequent dates of hearing are
summarized in the tabular form below:
Sr.# Date of Evidence Order/Observation by
Hearing produced / Trial Court
recorded by
the
"Petitioner"
(Yes/No)
1 13.11.2012 No Evidence not recorded.
Petitioner sought
adjournment.
2 19.11.2012 -do- Adjourned due to strike
of lawyers.
3 21.11.2012 -do- Evidence not recorded.
As per request of the
"Petitioner", last
opportunity was
granted.
4 27.11.2012 -do- Evidence not recorded.
As per request of the
"Petitioner", last
opportunity was
granted.
5 10.12.2012 -do- Evidence not recorded.
As per request of the
"Petitioner", last
opportunity was
granted.
6 13.12.2012 -do- Adjourned due to strike
of lawyers.
7 18.12.2012 -do- Evidence not recorded.
As per request of the
"Petitioner", absolute
last opportunity was
granted.
8 20.12.2012 -do- Evidence not recorded.
The case was adjourned
with absolute last
opportunity.
9 03.01.2013 -do- Witnesses not present.
As per request of the
"Petitioner", absolute
last opportunity was
granted.
10 08.01.2013 -do- Case was presented
before Duty Judge due
to transfer of Court.
The parties appeared
before the Duty Judge.
As per request of the
"Petitioner", absolute
last opportunity was
granted with clear cut
warning, if evidence
was not produced, its
right would be closed
11 15.01.2013 -do- Despite clear cut
waring, evidence was
not produced. The
"Petitioner" right was
closed under Order
XVI, Rule 3 of C.P.C.

7. It is apparent from the above tabled detail of proceedings of the trial

Court that the "Petitioner" was afforded eleven adjournments spreading
over more than two months for the production and recording of its
evidence. Even, despite clear warnings i.e. "last opportunity", "absolute
last opportunity" for more than once and even warning as to application of
penal provision under Order XVII, Rule 3 of the "C.P.C." by the trial Court,
the "Petitioner" failed to produce any evidence which shows its adamant
attitude towards the orders of the trial Court. Resultantly, the trial Court
was left with no option but to pass following order:

"15.01.2013 Present: Counsel for the parties.

Evidence of defendant is not available. Many opportunities have

already been given to defendant for production of evidence but defendant
has neither presented any evidence nor disclosed any reason for non-
production of same, rather, defendant has not made any request for
further adjournment. Consequently, defendant's right to produce evidence
is closed. Now to come up for final arguments on 17.01.2013."

8. Under Rule 1(1) of Order XVII of the "C.P.C.", the trial Court is vested
with powers to adjourn the case on showing sufficient cause by either of
the party and from time to time adjourn the hearing of the suit and Rule
1(2) of the said Order empowers the Court seized of the matter to fix a day
for further hearing of the suit subject to costs occasion by the
adjournment. Order XVII, Rule 3 of the "C.P.C." empowers the Court to
proceed to decide the suit forthwith if a party, to whom time has been
granted, fails to produce evidence, secure the attendance of witnesses, or
perform any other act necessary for the further progress of the suit. For
convenience, the said Rule 3 is reproduced hereunder for ease of
reference:

"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 witnesses,
or to perform any other act necessary to the further progress of the suit,
for which time has been allowed, the Court may, notwithstanding each
default, proceed to decide the suit forthwith."

9. The above provision of law was thoroughly considered and

deliberated upon by the Supreme Court of Pakistan in "Moon Enterpriser
CNG Station, Rawalpindi, v. Sui Northern Gas Pipelines Limited through
General Manager, Rawalpindi, and another" (2020 SCMR 300) holding
two conditions to be satisfied before applying above penal provision of law
to close the right of a party to produce evidence, which reads as:

i. that time must have been granted at the request of a party to the
suit to adduce evidence with a specific warning that said opportunity will
be the last and failure to adduce evidence would lead to closure of the
right to produce evidence; and

ii. that the same party on the date which was fixed as the last
opportunity fails to produce its evidence.

10. In the present case, the learned trial Court used the discretion in
favour of the "Petitioner" many a time by granting it adjournments for
production of complete evidence (as tabulated above) but it failed to catch
up the said leniency shown by the learned trial Court and even authorized
representative of the "Petitioner" did not enter into the witness box so as
to record his statement. The above picture of affairs makes it crystal clear
that how the "Petitioner" pursued its case and also shows his disobedience
and indifferent demeanour towards the orders of the Court; thus, such like
indolent person cannot seek favour of law, because law favours the
vigilant and not the indolent. In this regard reliance is placed on judgment
reported as "Rana Tanveer Khan v. Naseer-ud-Din and others" (2015
SCMR 1401), wherein it has been unequivocally held:-

'…………… it is clear from the record that the petitioner had availed
four opportunities to produce his evidence and in two of such dates (the
last in the chain) he was cautioned that such opportunities granted to him
at his request shall be that last one, but still on the day when his evidence
was closed in terms of Order XVII, Rule 3, C.P.C. no reasonable ground
was propounded for the purposes of failure to adduce the evidence and
justification for further opportunity, therefore, notwithstanding that these
opportunities granted to the petitioner were squarely fell within the
mischief of the provisions ibid and his evidence was rightly closed by the
trial court. As far as the argument that at least his statement should have
been recorded, suffice it to say that the eventuality in which it should be
done has been elaborated in the latest verdict of this Court (2014 SCMR
637). From the record it does not transpire if the petitioner was present
on the day when his evidence was closed and/or he asked the court to be
examined; this has never been the case of the petitioner throughout the
proceedings of his case at any stage; as there is no ground set out in the
first memo of appeal or in the revision petition.

It was further held that:-

'2. … Be that as it may, once the case is fixed by the Court for
recording the evidence of the party, it is the direction of the court to do
the needful, and the party has the obligation to adduce evidence without
there being any fresh direction by the court, however, where the party
makes a request for adjourning the matter to a further date(s) for the
purpose of adducing evidence and if it fails to do so, for such date(s), the
provisions of Order XVII, Rule 3, C.P.C. can attract, especially in the
circumstances when adequate opportunities on the request of the party
has been availed and caution is also issued on one of such a date(s), as
being the last opportunity(ies).'

Emphases supplied

11. The above said view was further affirmed by the Supreme Court of
Pakistan in "Moon Enterpriser CNG Station, supra by holding that "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. Such practices
must be discontinued, forthwith." In latest pronouncement on the identical
issue, the Supreme Court of Pakistan in "Imran Ahmad Khan Niazi v. Main
Muhammad Shahbaz Sharif" (2023 SCMR 636) has held that "leniency
shown on part of judges of Trial Court in the matter of accommodating
unjustified requests for adjournment, even at the cost of disregarding the
timelines provided in the relevant laws, is unwarranted….Orders granting
repetitive adjournments with warnings of "last and final" and "absolute
last and final" opportunity become meaningless and shatter the
confidence of the litigant public in the court orders and consequentially
weaken the authority and fiat of the court"

12. In view of law laid down in aforesaid judgments, the trial Court was
quite justified in closing the right of the "Petitioner" through impugned
order dated 15.01.2013 which, even otherwise, has not been challenged
before any forum, thus attained finality. Without first getting obstacle of
aforementioned order dated 15.01.2013, the "Petitioner" walked before
lower Appellate Court mere to agitate against the judgment and decree in
question passed by the trial Court and no justifiable reason backed by law
is available in scenario at this belated stage to dislodge aforementioned
order dated 15.01.2013.

13. Returning to the merits of case in hand, it evinces from the impugned
judgments and decrees that Exh.P2 is an admitted document, contents
whereof have not been denied by the "Petitioner", as is evident from paras
2 and 3 of this petition. Important to mention here that Exh.P-2 is the
agreement that was executed between the parties on 15.08.2006
according to which the "Petitioner" had to handover 43 electric sign poles
on the agreed sites however, the "Petitioner" remained unable to perform
its undertaken commitments whereas on the other hand, Muhammad
Umer Farook, Clerk Cantonment Board appeared in the witness box as
PW-1 while Muhammad Iqbal Butt appeared as PW-2, both were cross
examined by the "Petitioner". Moreover, the "Petitioner" has neither
denied the receiving of Rs.645,000/- from the "Respondent" nor receiving
of three cheques given to the "Petitioner" by the "Respondent" on account
of installment. The parties cannot be allowed to blow hot and cold in
single breath nor can they be allowed to assume divergent stances in their
acts and conduct in connection with litigations in court of competent
jurisdiction. Above indicated admission of Exh.P-2 on part of the
"Petitioner" otherwise leaves behind no room for its challenge to the
judgment and decree in issue.

14. Furthermore, there are concurrent findings of facts recorded by both

the courts below which are based on proper appraisal of evidence. No
jurisdictional defect or material irregularity is pointed out by the
"Petitioner" in either of the judgments and decrees under challenge. The
revisional powers are limited and can only be exercised when the
"Petitioner" succeeds in establishing that the impugned judgments suffers
legal infirmities hedged in Section 115 of the "C.P.C.". As already
observed that the "Petitioner" has failed to point out any illegality,
material irregularity, mis-reading or non-reading in the judgments and
decrees as well as order of both the Courts below, so the revisional
jurisdiction is not meant to re-appraise the evidence in order to devise an
inference other than the Courts below. It is observed by the Supreme
Court of Pakistan in case reported as "Mst. Farzana Zia and others Vs.
Mst. Saadia Andaleeb and others" (2024 SCMR 916) that "the High Court
has the powers to reevaluate the concurrent findings of fact arrived at by
the lower courts in appropriate cases but cannot upset such crystalized
findings if the same are based on relevant evidence or without any
misreading or non-reading of evidence. The first appellate court also
expansively re-evaluated and re-examined the entire evidence on record.
If the facts have been justly tried by two courts and the same conclusion
has been reached by both the courts concurrently then it would not be
judicious to revisit it for drawing some other conclusion or interpretation
of evidence in a second appeal under Section 100 or under revisional
jurisdiction under Section 115, C.P.C., because any such attempt would
also be against the doctrine of finality." Even earlier, it is held by the
Supreme Court of Pakistan in case cited as "Nasir Ali v. Muhammad
Asghar" (2022 SCMR 1054) that "the High Court has very limited
jurisdiction to interfere in the concurrent conclusions arrived at by the
courts below while exercising power under section 115, C.P.C. … After
scanning and browsing the evidence comprehensible on record, we
reached to an irresistible conclusion that the interference made by the
High Court in exercise of powers conferred under section 115, C.P.C. in
the concurrent findings recorded by the Trial Court and Appellate Court
was unjustified and unwarranted. Neither the Courts below have ignored
material evidence or acted without evidence or drawn wrong inferences or
conclusions from proved facts by applying the law erroneously, nor do the
findings recorded amount to a dearth of evidence or suffering from any
jurisdictional error or perversity." Further it is settled by the Supreme
Court of Pakistan in case reported as "Khudadad v. Syed Ghazanfar Ali
Shah alias S. Inaam Hussain and others" (2022 SCMR 933) that "The High
Court has a narrow and limited jurisdiction to interfere in the concurrent
rulings arrived at by the courts below while exercising power under
section 115, C.P.C. These powers have been entrusted and consigned to
the High Court in order to secure effective exercise of its superintendence
and visitorial powers of correction unhindered by technicalities which
cannot be invoked against conclusion of law or fact which do not in any
way affect the jurisdiction of the court but confined to the extent of
misreading or non-reading of evidence, jurisdictional error or an illegality
of the nature in the judgment which may have material effect on the result
of the case or the conclusion drawn therein is perverse or contrary to the
law, but interference for the mere fact that the appraisal of evidence may
suggest another view of the matter is not possible in revisional
jurisdiction, therefore, the scope of the appellate and revisional
jurisdiction must not be mixed up or bewildered. The interference in the
revisional jurisdiction can be made only in the cases in which the order
passed or a judgment rendered by a subordinate Court is found to be
perverse or suffering from a jurisdictional error or the defect of
misreading or non-reading of evidence and the conclusion drawn is
contrary to law." More or so the same principles have been elaborated,
highlighted and settled by Supreme Court of Pakistan in cases reported as
"Shahbaz Gul and others v. Muhammad Younas Khan and others" (2020
SCMR 867), "Noor Muhammad and others v. Mst. Azmat-e-Bibi" (2012
SCMR 1373), "Hazara and others v. Muhammad Yar and others" (2011
SCMR 758), as that if evidence available on record is thoroughly examined
by trial Court as well as First Appellate Court, the learned High Court, in
exercise of its revisional jurisdiction, was not called upon to re-appraise
and re-evaluate the merits of evidence of the parties in the absence of any
illegality or non-reading/ misreading of evidence. Moreover, the
judgments referred to by learned counsel for the Petitioners cannot be
relied upon being distinguishable from the facts and circumstances of the
case as each and every case has its own merits.

15. In view of above, this civil revision, being without any merit, is
dismissed with no order as to costs.