' MEHMOOD MAQBOOL BAJWA, J.--- Legality of order dated 21-7-2011 has been called in question at the instance of petitioners arrayed as defendants Nos.1 and 2 in the suit for partition, declaration and perpetual injunction whereby the learned trial Court vide order assailed closed their evidence under Order XVII Rule 3 of the Code of Civil Procedure, 1908.
2. Necessary facts resulting in filing of present revision petition are that respondent No.1 instituted a suit for partition, declaration and perpetual injunction against the present petitioners and respondents Nos.2 and 3. After recording the evidence of respondent No.1 lis was adjourned for evidence of the present petitioners as well as respondents Nos.2 and 3. The respondents Nos.2 and 3 concluded their evidence. At the instance of the petitioners Muhammad Aslam (D.W.1) appeared on 21-7-2011. Request was made by the petitioners for an adjournment, on which date an application under Order VI, Rule 17 of the Code of Civil Procedure, 1908 was also made. Keeping in view the date of institution of the suit, direction for expeditious disposal of the case and conduct of the petitioners insisting upon the disposal of the application under Order VI, Rule 17 of the Code of Civil Procedure, 1908 prior to recording evidence, the learned trial Court did not grant adjournment for the production of evidence.
3. Heard.
4. The learned counsel for the petitioner maintained that only one opportunity was granted to the petitioners for production of evidence and they produced one witness i,e, Muhammad Aslam who appeared as D.W.1 on 21-7-2011. Argued that the remaining evidence of the petitioners though was not in attendance on the said date of hearing but an application was made by the petitioners for deposit of diet money to summon the witnesses which was allowed by the learned trial Court on 14-3-2011 and the petitioners submitted copy of the application regarding deposit of diet-money and summonses in the names of all the witnesses to be issued for 21-7-2011 which was received by the Ahlmad of the Court and as such the evidence of the petitioners could not have been closed by the learned trial Court as the duty was cast to procure the attendance of the witnesses sought to be summoned. Argued that the petitioners liquidated their responsibility and deposit of diet moneynd summonses to be issued in the names of the witnesses and as such they cannot be held responsible for non-issuance/non-service of summonses.
' Opposing the revision petition the learned counsel, for the respondent No.1 maintained that suit was instituted in the year, 2003 and the present petitioners being defendants are delaying the disposal of the suit on one pretext or the other and despite repeated directions for expeditious disposal of the case, it is being delayed for one or other lame excuse being adopted at the instance of the petitioners. The learned counsel for the respondent No.1 further went on saying that the respondent wants decision of the case on merits having no objection if the petitioners are provided one opportunity to produce their evidence.
5. Perusal of the .Record suggests that after conclusion of evidence of respondent No.1, lis was fixed for evidence of the present petitioners as well as respondents Nos.2 and 3. Though the certified copies of the whole interim order-sheet had not been made part of the record at the instance of the petitioners but nevertheless fate of the revision petition can be conveniently decided in view of the material available on record keeping in view the facts and circumstances of the case. Perusal of the order dated 4-7-2011 suggests that parties were provided an opportunity to produce copy of this Court's order regarding dismissal of the revision petition or otherwise for evidence of the present petitioners affording last opportunity for 8-7-2011, on which date again without any formal proceedings, it was posted for 18-7-2011, on which date certified copies of orders made in revision petition were submitted. It was noted that last opportunity was afforded to the petitioners but their evidence was not in attendance. So, it was adjourned for 21-7-2011, on which date statement of Muhammad Aslam (D. W.1) was recorded through Local Commission. Admittedly, remaining evidence was not in attendance. An application was made on behalf of the petitioners under Order VI, Rule 17 of the Code of Civil Procedure, 1908 and it was insisted that the said petition be decided first of all. With this background, the learned trial court though fixed the case for submission of reply to the said application but without granting premium of further adjournment with reference to production of evidence.
6. Perusal of the record suggests that an application was made by the petitioners being defendants Nos.1 and 2 for summoning of witnesses on 14-3-2011 which was allowed on the same day by the learned trial Court and as per endorsement of Naib Nazir-Account diet money of all the witnesses was deposited on 14-7-2011. The record is totally silent regarding the deposit of summonses on the previous dates of hearing but nevertheless the petitioners have placed on record receipt issued by the Ahlmad of the learned trial Court regarding the deposit of summonses to be issued in the names of the witnesses, process fee along with the application showing the deposit of diet money .For 21-7-2011 Since the petitioners deposited the diet money to summon the witnesses mentioned in the application under Order XVI Rule 2 of The Code of Civil Procedure, 1908 and also deposited process fee and summonses to be issued in the names of 11 witnesses, therefore, it was the duty of the learned trial Court to issue process in the names of the said witnesses.
' Though it was contended at the instance of the petitioners that process was issued in the name of the witnesses but same was returned unnerved: However, there is nothing on record to substantiate the contention of the petitioners but nevertheless this fact by itself is not sufficient to non-suit the petitioners. Since the petitioners deposited the diet money with the prior permission of the Court and also deposited the process fee as well as summonses, therefore, the present petitioners liquidated their responsibility and now it was the duty of the learned trial to issue process. In view of the matter, the learned trial Court despite reaching to the conclusion that matter is being delayed by the petitioners deliberately was not competent and authorized to close the evidence of the petitioners as the order regarding deposit of diet money was made by the Court itself which was duly complied and process was deposited in the names of the witnesses for the date on which date further adjournment was declined.
7. Pursuant to above discussion the order impugned suffers from jurisdictional defect. The learned trial Court before passing the impugned order should have gone through the record. In view of the matter, while passing the impugned order the learned trial Court failed to exercise its jurisdiction vested in it and as such while setting aside the order impugned to the extent of refusal to grant further adjournment for evidence revision petition is accepted. The learned trial Court while issuing process in the names of the witnesses shall make specific order regarding service of the witnesses either under Rule 7(a) or Rule 8 of Order XVI of the Code of Civil Procedure, 1908 keeping in view the attending circumstances.