IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Irfan Saadat Khan
Mr. Justice Muhammad Shafi Siddiqui
Civil Petition No.473-K/2023
Against the judgment dated 27.01.2023 passed by High Court
of Sindh, Karachi in IInd Appeal No.132 of 2019
M Muhammad Feroz-ud-din Hilali …Petitioner(s)
Versus
Nadir & others …Respondent(s)
For the Petitioner(s): Ch. A. Rasheed, ASC
For the Respondent(s): Mr. Muhammad Aziz Khan, ASC
Mr. K.A. Wahab, AOR.
Date of Hearing: 25.03.2025
ORDER
Muhammad Shafi Siddiqui, J.- A complaint under the provisions of
Illegal Dispossession Act, 2005 was filed by the petitioner/applicant
which was dismissed by the District Judge vide order dated 22.10.2010.
After the dismissal of the said application a suit bearing No.833 of 2016
was filed before the trial Court which was dismissed vide judgment dated
17.04.2017. The said judgment was then impugned by the petitioner/
plaintiff before the First Appellate Court in Civil Appeal No.84 of 2017
which appeal was also dismissed vide judgment dated 13.04.2019 and
consequently the petitioner filed Second Appeal under section 100 CPC
before High Court which too was dismissed on 27.01.2023.
2. The two forums of different jurisdiction have concluded against the
petitioner i.e. the complaint under the provisions of Illegal Dispossession
Act, 2005 was dismissed by District Judge followed by the dismissal of
the suit on the original side along with First Appeal and Second Appeal
accordingly.
Civil Petition No. 705-K/2022
2
3. At the very outset the scope of Section 100 CPC and that too
against the concurrent findings of the original Civil Court and the first
Appellate Court is limited. The argument of the counsel for the petitioner
was that the provisions of Order XVII Rule 3 CPC were misapplied to
decide the lis and per learned counsel the trial Court failed to record
evidence of the petitioner.
4. The judgment of the Senior Civil Judge/trial Court was passed on
17.04.2017 after dismissal of the adjournment application. The
application was dismissed after recording the reasons that on the
previous date (previous to the dismissal of last adjournment application)
the petitioner also moved an adjournment application which was allowed
as a last chance, despite availing earlier opportunities too. On the fateful
date neither the petitioner being plaintiff in the suit nor his counsel
appeared but an adjournment application was sent stating that the
petitioner was suffering from fever. On the same day after dismissal of
the adjournment application, the judgment was announced and the suit
of the petitioner was dismissed being devoid of any evidence. In support
of the pleadings the first and second Appellate Court formed a similar
view as no indulgence was required.
5. Order XVII Rule 3 CPC is triggered when any party fails to produce
evidence and the Court in that eventuality may, notwithstanding such
default, proceed to decide the suit forthwith. The petitioner being
aggrieved of such decision under order XVII Rule 3 CPC preferred an
appeal but has not taken the ground that under the given circumstances
Order XVII Rule 3 CPC was misapplied.
6. The solitary ground argued by the counsel for the petitioner was
that after dismissal of the adjournment application on 17.04.2017 the
side of the petitioner, being plaintiff in the suit, was not closed. We have
perused the judgment of the trial Court and finds that indeed, by an order
an adjournment application was dismissed but insofar as closure of the
Civil Petition No. 705-K/2022
3
side for recording of evidence is concerned that was clarified in the
judgment. Besides, this was nowhere pleaded either in the first appeal or
in the second appeal, hence a new ground is not open for indulgence.
7. We do not find this to be a cause to interfere with the concurrent
findings of three Courts below who have recorded the non-serious
attitude of the petitioner in recording the evidence on a number of
occasions, particularly when the petitioner has failed to point out if he
has categorically and specifically taken this ground before the two
appellate forums below. Consequently petition merits no consideration
and the same is accordingly dismissed and leave refused.
Judge
Judge
Announced in open Court on _____.03.2025.
Judge
Karachi
“Not Approved for reporting”
