' FAQIR MUHAMMAD KHOKHAR, J.--- The respondent had filed a suit for declaration regarding suit- land measuring 68 Kanals and 7 Marlas which he claimed to have got through exchange from the petitioner. The case was fixed by the Civil Judge, Depalpur, for 6-12-1995, for production of the rebuttal evidence of the respondent. The Presiding Officer of the Court was on medical leave.
Therefore, the file was placed before the Duty Judge who adjourned it to 20-12-1995 but with the observation that the rebuttal evidence was not available. On 20-12-1995 the right of the respondent to produce rebuttal evidence was closed under Order XVII, rule 3, C.P.C. Later, suit of the respondent was dismissed by the trial Court, vide judgment, dated 22-5-1996. He filed an appeal before the Additional District Judge, Depalpur, Okara which also failed, vide judgment, dated 31-1-2001.
Therefore, he filed Civil Revision No,1763 of 2001 which was allowed by a learned Single Judge, of the Lahore High Court, Lahore, vide impugned judgment, dated 9-2-2004 subject to payment of costs of Rs,5,000. Consequently, the judgments dated 22-5-1996 and 31-1-2001, passed by the Civil Judge and the Additional District Judge, Depalpur were set aside and the case was remanded to the trial Judge with the direction to grant one opportunity to the respondent to produce rebuttal evidence.
2. The learned counsel for the petitioner submitted that the Duty Judge was empowered to take note of the failure on the part of the respondent to produce the 'rebuttal evidence. Therefore, the dismissal of the suit of the respondent on 22-5-1996 by the trial Court was eminently justified as the affirmative evidence had already been produced by him.
3. We have heard the learned counsel for the petitioner at length and have also perused the available record. We find that the order, dated 6-12-1995 by the Duty Judge was as a routine order which could not entail penal provisions of Order XVII, rule 3, C.P.C. The order, dated 6-12-1995 was admittedly composed by the Reader of the Court and not by the Judge himself. Therefore, keeping in view the facts and circumstances of the case, the High Court had taken a correct view for setting aside the judgments passed by the Courts below in order to provide a fair opportunity to the respondent to produce his rebuttal evidence. The learned counsel was not in a position to make any categorical statement that the rebuttal evidence had not so far been produced by the respondent. In all probability, the same must have been produced as the impugned order was passed as back as on 9-2-2004 with the direction to the parties to appear before the trial Court on 25-2-2004. In our view, the impugned judgment of the High Court is just and fair to which no exception can be taken.
4. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.