' MUHAMMAD JEHANGIR ARSHAD, J.---This Civil Revision is directed against the order, dated 10-1- 2007 passed by learned Additional District Judge, Ferozewala, whereby the. Learned Additional District Judge, after accepting the appeal of the respondent against the dismissal of his pre- emption suit by the learned trial Court on 5-9-2006, remanded the case to the learned trial Court for deciding the same afresh.
2. Facts in brief are that against sale of agricultural land measuring 198-Kanal 11-Marla situated in village Loharianwala Tehsil Ferozewala District Sheikhupura, through sale-deed, dated 24-10-2002 in favour of petitioner, the respondent filed a suit for pre-emption against the petitioners, being co- sharers, having common source of irrigation, common passage and also contiguity of land in dispute with his property. The suit was contested by the petitioners by way of filing written statement. However, before framing of issues, the suit was dismissed for non-prosecution on 22-1- 2004 by the learned trial Court but was later on restored on 29-4-2004. Therefore, it so happened that due to absence of the present petitioners/ defendants, they were proceeded against ex parte on 23-12-2004 and the matter was adjourned for recording ex parte evidence of the respondent/plaintiff. Since, despite availing several opportunities the respondent failed to produce his ex parte evidence, therefore, the learned trial Court-vide judgment, dated 5-9-2006 after closing his evidence proceeded to dismiss the suit in terms of Order XVII Rule 3 C.P.C.
' Against the said judgment of the learned trial Court the respondent filed an appeal and the learned Additional District Judge through the impugned judgment, dated 10-1-2007 after accepting the said appeal of the respondent remanded the case to the learned trial Court for deciding the same afresh. Hence, this Civil Revision.
3. It is submitted by learned counsel for the petitioners that as despite obtaining several opportunities the respondent failed to produce his evidence, therefore, his evidence was rightly closed by the learned trial Court and suit was eventually dismissed correctly but the learned Additional District Judge on erroneous assumption of law and facts wrongly accepted the appeal of the respondent and allowed him opportunities to produce evidence. Further argues that the explanation offered by the respondent for not producing his evidence was not factually correct inasmuch as, he was arrested in case F.I.R. No, 44, dated 31-1-2004 under sections 302, 427, 148, 149 read with section 109 P.P.C. P.S Satrali, District Sialkot and was allowed bail by this Court vide Crl.
Miscellaneous No,6233-B/2004 on 1-10-2004, when the suit was at initial stage. Copy of the bail granting order passed by this Court in the above criminal case has been placed on the record and perused.
4. Since, despite service of notices and proclamation in daily "PAKISTAN" the respondent faded to appear, therefore, was proceeded against ex parte by this Court on 1-10-2007.
5. Arguments considered and record perused.
6. As noted above, in the preemption, the present petitioners/defendants were proceeded against ex parte by the learned trial Court on 23-12-2004 and thereafter, the respondent/plaintiff was directed to produce his ex parte evidence. From 23-12-2004 to 5-9-2006 inasmuch as fourteen opportunities were afforded to the respondent/plaintiff and on the last date of hearing prior to 5-9- 2006 i.e, 24-7-2006, the respondent was given last opportunity to produce evidence but he failed. It appears that on 5-9-2006 even the respondent/ plaintiff himself was not in attendance to make his statement as a witness for his own, therefore, the learned trial Court rightly proceeded under Order XVII rules 2 and 3 C.P.C. Reliance is placed on the case "Ghulam Qadir alias Qadir Bakhsh v.
Haji Muhammad Suleman and 6 others" PLD. 2003 SC 180. So far as the explanation given by the respondent/ plaintiff before the learned appellate Court for not producing the evidence i.e, his involvement and arrest in some criminal case, is concerned, the same is negated by the order of this Court, whereby, he was ordered to be released on bail on the said date,. Whereas, he was afforded opportunities for producing evidence after the said date, therefore, there was no justification for the learned appellate Court to accept the appeal of the respondent for the said so- called reasons. I am; therefore, satisfied that no justification existed for the learned appellate Court to accept the appeal and remand the case to the learned trial Court for affording further opportunity to the respondent/plaintiff to lead evidence, who otherwise, appears to have lost interest in the suit inasmuch as, he did not bother to appear before this Court despite citation in the newspaper "PAKISTAN" on 15-9-2007 and was thus proceeded against ex parte on the said date. As directed by this Court on 1-10-2007 a copy of the said order was also sent to the respondent by the office through letter No,178/Civil-II, dated 5-10-2007, which clearly indicates that he had full knowledge of pendency of this Civil Revision. Resultantly this Civil Revision is allowed and the order of learned appellate Court dated 10-1-2007 accepting the appeal and remanding the case to the learned trial Court, is set aside and the judgment and decree of dismissal of the suit by the learned trial Court, dated 5-9-2006 is restored. No order as to costs.