' JAWWAD S. KHAWAJA, J.---The petitioner/defendant impugns the appellate order dated 14-6- 2005, whereby the decree of the learned trial Court dated 23-10-2004 was set aside and the case was remanded to the learned trial Court. The facts of this case are simple. The respondent/plaintiff Muhammad Sami filed a suit seeking declaration of title to the suit property. The case was contested by the petitioner. Seven issues in the matter were framed by the learned trial Court on 16-11-2002. Thereafter, as many as 21 opportunities were granted to the respondent/plaintiff to produce his evidence but he failed to do so. At this point, it is relevant to note that on 25-6-2004 the respondent's evidence being unavailable, the learned trial Court granted one final opportunity to him to bring his evidence on 11-9-2004. However, even on 11-9-2004 the respondent's evidence was unavailable but in the interest of justice, the trial Court was indulgent and granted yet another final opportunity to the respondent to lead his evidence. For this purpose the case was adjourned to 23-10-2004. On that date, the respondent, once again, failed to produce his evidence and as a result, the learned trial Court invoked the provisions of Order XVII, rule 3, C.P.C. And proceeded to dismiss the suit of the respondent/plaintiff for want of evidence.
2. The respondent thereafter preferred an appeal, which, as noted above, was allowed and the matter was remanded to the learned trial Court. The learned appellate Court proceeded to frame four additional issues and also noted in its order that the petitioner (who was respondent before the learned Appellate Court) had not objected to the grant of a final opportunity to the respondent to produce his evidence.
3. Before me, learned counsel for the petitioner has stated that the petitioner had never been served and nor had he engaged any counsel to represent him in the appellate Court. It is further contended that considering the order sheet of the learned trial Court showing as many as 21 opportunities granted to the respondent including the two absolutely final opportunities dated 25- 6-2004 and 11-9-2004 to produce evidence, there was no occasion, at all, for the petitioner to concede the case of the respondent before the learned lower appellate Court.
4. The petitioner was the sole respondent in the appellate Court. According to him, he never appointed Mr. Amjad Iqbal, Advocate to represent him or to make any statement on his behalf. The power of attorney, which was filed by Mr. Amjad Iqbal, Advocate before the appellate Court, has also been seen by me. Mr. Muhammad Bashir, present in Court, states that his signatures on the power of attorney have been forged. Examination of the signatures of Muhammad Bashir petitioner on various documents and affidavits on file, prima facie, support the contention of the petitioner.
Furthermore, Mr. Amjad Iqbal, Advocate was summoned and is present. He states that the power of attorney was provided to him by the son of the petitioner and not by the petitioner. This also lends credence to the statement of the petitioner.
5. In the above circumstances, the appeal of the respondent shall stand restored and be deemed pending before the appellate Court, which shall proceed to decide the same as per law. Since the parties are represented, they are directed to appear before the learned appellate Court on 16-1- 2006.
6. Before parting with this judgment I need to note the alleged conduct of Mr. Amjad Iqbal, Advocate. It is stated by the petitioner that he was the junior of Ch. Jamil Ahmad Sindhu, Advocate, who practises at Chunian and Lahore, and who had been engaged by the petitioner to defend him in the suit before the trial Court. Power of attorney was given by the petitioner to the said Mr. Sindhu, Advocate. It is stated that Mr. Amjad Iqbal, Advocate, at times, appeared in Court on behalf of his senior but he was not engaged as counsel either at the trial stage or in appeal. The petitioner will be entitled to agitate this matter also before the appellate Court.