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Constitutional Petition No.100/D of 1986, decided on 18th March, 1987.

‑‑‑O.IX, R.4‑‑Restoration of application dismissed in default‑‑Notice to respondent whether necessary‑‑Validity of notice‑‑Notice to respondent of restoration application, held, would not be necessary‑‑Where, however, such notice had been issued, same would not be without jurisdiction or in excess of jurisdiction.

Mst. Rehmat and 3 others. v. Messrs Samz Shipping Co. Panjoo Ltd., Karachi through its Principal Officer P L D 1976 Kar. 953 and Sardar Abdul Majid Khan Lashari v. The Asio African Co. Ltd. 1972 SCMR 236 ref.

‑‑‑O.XVII, R.1‑‑Adjournment of case‑‑Discretion of Court to grant or not to grant adjournment of case‑‑Trial Court, held, has discretion to refuse adjournment application‑‑Discretion would be properly exercised where a number of chances were given to petitioners and case was decided when they failed to avoid such chances.

‑‑‑Art. 199‑‑Civil Procedure Code (V of 1908), S.115 & O.IX, R.4‑‑ Constitutional jurisdiction, exercise of‑‑Where revisional order of Court was quite explicit and speaking one, on grounds of refusal of adjournment application, High Court refused to exercise Constitutional jurisdiction, to interfere with orders of Courts below.

Rashid Ahmad for Petitioner.

.‑‑(1) Granted.

2. By this petition under Article 199 of the Constitution of Pakistan, 1973, the learned counsel has prayed for setting aside the impugned orders dated 13‑5‑1984 and 16‑3‑1986 passed by respondents Nos.15 and 16 respectively on his application made under Order IX, Rule 4 and Revision Application under section 115, C.P.C. The facts giving rise to this petition, briefly stated, are that the petitioners filed Suit No.208 of 1976 for declaration, injunction and cancellation of Record of Rights claiming a share of 85.50 in the suit land against the respondent Nos.l to 14. The suit was fixed for evidence of the petitioner on a number of dates but was adjourned from time to time for one reason or the other, last chances were given to the petitioner on 8‑12‑1981, 12‑1‑1982, 1‑3‑1982 for adducing evidence and lastly on 18‑5‑1982 for producing the evidence, but on that date i.e. 18‑5‑1982 the petitioners, again, moved an application for adjournment on the ground that both the petitioners, who were plaintiffs in the suit, were busy in harvesting their crops. The request for adjournment was refused and the suit was dismissed by the learned trial Court. An application under Order IX, Rule 4, C . P. C . was thereupon filed by the petitioner on 2‑6‑1982 which was dismissed by his order dated 13‑5‑1984. Against the said order a Revision Application under section 115, C.P.C. was preferred by the petitioner but the same too met the same fate and was dismissed by the learned First Additional District Judge by his order dated 16‑3‑1986. Now, the petitioners have moved this Court under Article 199 of the Constitution of Pakistan, 1973.

Mr. Syed Rashid Ahmad, learned counsel for the petitioner has urged that it was not required to give a notice of restoration of application under Order IX, Rule 4 to respondents Nos.l to 14 because they were also absent on that date when the suit was dismissed. Reliance has been placed on the cases, Mst. Rehmat and 3 others v. M/s. Samz Shipping Co. Panjoo Ltd. Karachi through its Principal Officer P L D 1976 Kar. 953 and Sardar Abdul Majid Khan Lashari v. The Asio African Co. Ltd. 1972 S C M R 236. It is true that the notice to respondent of restoration application was not necessary but it does not mean nor any rule can be said to have been laid down in the above authorities cited by Mr. Syed Rashid Ahmad that if a notice is issued it is without jurisdiction or in excess of jurisdiction. The contention is, therefore, without any force.

Mr. Syed Rashid Ahmed further contended that the learned two Courts below did not advert to the fact that the petitioners were busy in harvesting their crops and both the orders are non‑speaking. We do not find ourselves in agreement with the learned counsel. It cannot be denied that the learned trial Court has discretion to refuse the adjournment application. We feel that this discretion has been exercised properly inasmuch as a numbers of chances, which are described in the revisional order as last chances, were given to the petitioners, for producing evidence. It appears that on 18‑5‑1982 when the adjournment was sought, the matter was, again, fixed for producing evidence on behalf of the petitioners.

The revisional order is quite explicit and speaking on this aspect of the matter. We, therefore, do not feel inclined to exercise our constitutional jurisdiction, which is equitable in nature, in favour of the petitioners, for not showing indulgence by the trial Court by not adjourning the suit and dismissing the application for seeking adjournment. The orders passed by two Courts below do not call for any interference. The petition is dismissed in limine.

3. In view of the dismissal of the main petition this application is also dismissed as having become infructuous.

A . A . / H‑9/ K Petition dismissed.

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