' SHAHZAD AKBAR KHAN, J.---Muhammad Khalid and 3 others have, by way of this Constitutional petition, sought a relief to the effect that petitioners be given the enhanced compensation for their land which was acquired by respondents through Award No.137 dated 14-12-1994 on the basis of judgment dated 7-5-2002 passed by learned Senior Civil Judge/Reference Judge, Abbottabad which was delivered in objection petition in terms of section 18 of the Land Acquisition Act filed by other co-owners of land acquired.
2. The short facts relevant for disposal of this Constitutional petition are that pursuant to the request of District Education Officer (male) Secondary Education, Abbottabad some land was acquired by Collector Abbottabad through Award bearing No.137 dated 14-12-1994. The owners of land being dissatisfied with the compensation amount preferred objection petition in accordance with section 18 of Land Acquisition Act. Petitioners also filed a similar application but the same was dismissed by learned Senior Civil Judge while invoking the provisions of Order 17 rule 3 of C.P.C. As the petitioners had failed to produce their evidence notwithstanding the fact that numerous adjournments were granted in their favour by the trial Court. Subsequently an application bearing the tenor of restoration of suit which was dismissed on 1-11-1999 was filed but the same was rejected by learned Senior Civil Judge on 8-5-2002. This order was further challenged by way of an Appeal No.14 of 2002 before this Court. While deciding the said Appeal the order dated 8-5-2002 was quoted by the Honourable Single Bench of this Court. The relevant observations recorded by learned Single Bench of this Court in its order dated 28-3-2003 is reproduced as below:-- "5. The plain reading of order dated 1-11-1999 sufficiently suggests that it was passed, for, the appellant failed to deposit the died money. It is observed from the record that petitioner was not prosecuting his objection petition with due diligence. On 16-10-1996, the ex parte proceedings were initiated against the respondents therein and the petitioner was directed to record ex parte evidence on 17-11-1996. On consecutive four dates of hearing i.e. 17-11-1996, 8-12-1996, 27-2-1997 and 19-5-1997 the petitioner failed to produce his evidence. On the next date fixed (17-6-1997), he did not appear, therefore, fresh summons were issued to him for 28-7-1997. On various dates of hearing till 4-11-1998, the petitioner kept on requesting for adjournments. On 22-12-1998 he was subjected to fine of Rs.50 for recording his ex parte evidence on 1-3-1999. Again till 17-6-1999, the petitioner did not produce his evidence, therefore, he was again fined to Rs.100. On 23-9-1999, a fine of Rs.100 was again imposed for producing his ex parte evidence on 1-11-1999. The consistent failure on the part of the appellant to produce his ex parte evidence obliged the trial Court to record order dated 1-11-1999."
' The appeal of appellant was, however, dismissed and the order of dismissal attained finality.
3. The learned counsel appearing for petitioners has argued that notwithstanding the failure of petitioners in proving their case before learned Referee Judge for want of evidence petitioners are still entitled to the enhanced compensation which was ordered by learned lower Court through a judgment rendered in Case No.25 of 2004 captioned as Mst. Bibi Jan and others v. Collector Land Acquisition Abbottabad and another. He urged that the land of petitioners is similar in its nature to the land acquired from owners in the above referred case.
4. We have considered the contention of learned counsel for petitioners but we find no substance therein for the reason that petitioners had brought an independent case before learned Senior Civil Judge, Abbottabad but they failed to make out a case of their own by producing cogent evidence despite the fact they were liberally granted various opportunities for producing their evidence. The non-production of evidence by petitioners resulted into dismissal of their case under Order 17 rule 3 C.P.C. Thus application of Order 17 rule 3 gave status of a decree to decision of trial Court. This feature of case was dealt with by this Court in paragraph No.7 of the judgment which is quoted below:-- "7. There could be no cavil with the proposition that if suit is dismissed in default for non- appearance under Order 17 rule 1 C.P.C.; no appeal would lie. However, under Order 17 rule 3 C.P.C.
Where the Court disposes of the suit, the decision amounts to decree and the same can be assailed through appeal. In this context, reference may be made to the case of Rehmatullah Khan v. Saadat Ali Khan (1991 M LD 1017) wherein similar circumstances, it was held that closing evidence under Order 17 rule 3 C.P.C. And dismissing the suit amounted to an appealable decree."
5. In the light of above statement of facts and law it follows that a decree of civil Court was operating against petitioners and the same is still holding field. When claim of petitioners was denied on the basis of a judgment and decree of a civil Court no benefit contrary to said judgment and decree can be claimed by petitioners as on the basis of judgment and decree rendered against petitioner rights of the opposite party have come into existence which in presence of such judgment and decree cannot be violated.
6. Resultantly, we see no fore in this writ petition and the same is dismissed in limine.