This civil revision filed under Section 115 CPC is directed against the judgment dated 5.4.1994 passed by the learned Additional District Judge Lodhran, whereby the appeal of the petitioner was dismissed observing that the learned trial Court had validly closed the evidence of the petitioners and had properly appreciated the evidence brought on record and the relevant law.
2. Brief facts giving rise to this civil revision are that the respondents claim themselves as owners of land measuring 4 kanals 1 marla situated in Mauza Wahi Fato Channer, Tehsil Lodhran, in accordance with the entries in Misl-e-Haqyat for the year 1963-64. The petitioners allegedly took possession illegally of the said land in the year 1984. The respondents asked to hand over the possession of the suit property but they refused to give the same. The suit was contested by the petitioners by filing written statement, wherein it was contended that the suit was barred by time; that the respondents were estopped by word and conduct from filing the suit; that the suit was not properly valued for. the purposes of Court fee and jurisdiction and that they had raised construction over the suit land at the expenses of Rs, 2,00,000/- therefore, they were entitled to the recovery of the expenses.
3. Out of the pleadings of the parties, following issues were framed:--
1. Whether the plaintiffs are entitled to the possession of the suit land? OPP
2. Whether the suit is barred by time? OPD 2 to 4 and 6 to 14.
3. Whether the suit is barred by way of estoppel? OPD 2 to 4 and 6 to 14.
4. Whether the suit is not properly valued and stamped? OPD 2 to 4 and 6 to 14.
5. Whether this Court lacks jurisdiction to try this suit? OPD 2 to 4 and 6 to 14.
6. Whether the defendants have been enjoying the suit land for a period of more than 12 years and without any interruption? OPD 2 to 4 and 6 to 14.
7. Whether the defendants are entitled to recover Rs, 2,00,000/-on account of improvements? OPD 2 to 4 and 6 to 14.
8. Whether the defendants are entitled to special costs? If so upto what extent? OPD 2 to 4 and 6 to 14.
9. Relief.
4. The respondents adduced their evidence. The petitioners did not produce the evidence, whereupon their right of evidence was closed under Order 17 Rule 3 CPC on 6.3.1991 and ultimately the suit was decreed against the petitioners by the learned Civil Judge Lodhran vide his judgment dated 1.12.1992. Against the said judgment, the petitioners filed an appeal before the learned Additional District Judge, Lodhran, who vide his judgment dated 5.4.1994 dismissed the same.
Hence this civil revision.
5. Learned counsel for the petitioner has contended that if the case .according to the trial Court was to be adjourned for recording the evidence in rebuttal of the respondents/plaintiffs though the petitioners,' evidence had been closed, the discretion should have been exercised in granting another opportunity in the interest of justice to the petitioners to produce evidence, as such the trial Court acted arbitrarily. Reliance in this regard was placed upon Sultan Vs. Yara and others (1995 M LD 1078).
6. On the other hand, learned counsel for the respondents has vehemently opposed the civil revision and has supported the impugned judgment. He further submitted that the petitioners were given about seven opportunities for the production of evidence but they did not produce any evidence, therefore, the order passed by the trial Courts for closing of evidence was in accordance with law. Reliance in this behalf was placed upon Fateh Sher Vs. Muhammad Zubair (2003 SCM R 797).
7. I have heard learned counsel for the parties and perused the record.
8. For the disposal of the civil revision, it is necessary to reproduce Order XVII Rule 3 CPC, which is as under: "Court may proceed notwithstanding either party fails to produce evidence, etc.--Whether 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 such default, proceed to decide the suit forthwith.
A bare perusal of the said rule reveals that matter of adjournment and closing of evidence rests in Court's discretion.
9. Perusal of the record of the trial Court reveals that the respondents/plaintiffs concluded their evidence on 11.12.1989. Thereafter the petitioners/defendants were given about seven opportunities for the production of evidence. On 19.1.1991, the petitioners/defendants were given last opportunity for evidence. On 6.3.1991, they did not produce any evidence nor assigned any reason for non- production of evidence, therefore, the learned trial Court proceeded to close the evidence of the petitioners under Order XVII Rule 3 CPC. It is averred in para 2 of the appeal filed by the petitioners before the learned Addition District Judge that 6.3.1991 was the dated fixed for evidence of the petitioners. One of the petitioners was died on that date, so the petitioners could not bring their evidence. The name of the petitioner had not been disclosed who died on that date. Record shows that none of the petitioners died on that date. Ground of the death of one of the petitioners is not correct and is an after thought. Even otherwise the order dated 6.3.1991, supra, was never assailed.
10.In the authority referred by learned counsel for the petitioners i,e, 1995 M LD 1078, on the adjourned dated i,e, 13.4.1991 the petitioner alongwith his two witnesses appeared before the Court at 9.00 a.m. but the Court timings started from 7.30 a.m. instead of 9.00 a.m., therefore, the petitioner had no notice of the changed Court timings and as such the order of the trial Court was set aside. But in the present case, on the adjourned date i,e, 6.3.1991, counsel for the parties were present but the evidence of the petitioners was no present despite giving last opportunity to the petitioners on the last dated i,e, 19.1.1991. The facts of the case referred to by learned counsel for the petitioners are different from the facts of the present case, therefore, the authority relied upon by learned counsel for the petitioners is not applicable to this case.
11. In view of the above circumstances, I am of the view that the dismissal of appeal of the petitioners by the learned Additional District Judge by affirming the judgment and decree dated 1.12.1992 of the learned trial Court does not suffer from any illegality, jurisdictional error or material irregularity. Therefore this petition has no merits which is accordingly dismissed. No order as to cost.