' QAISER RASHID KHAN, J.--- Being aggrieved of the judgments/orders dated 28-6-2008 and 14-2- 2009 of the learned Civil Judge-IV, D.I.Khan and learned Additional District Judge-VI respectively, the plaintiff/petitioner has filed the instant revision petition under section 115, C.P.C.
2. Brief and essential facts leading to the instant revision petition are that the plaintiff/petitioner filed a suit against the defendants/ respondents for possession and perpetual injunction on 6-1- 1999. The suit was contested by the defendants/respondents by filing their written statement. From the divergent pleadings of the parties the learned trial court framed as many as 10 issues including the relief. The plaintiff/ petitioner examined three P.Ws. When on 28-6-2008 not only his defence was struck off, but his suit was also dismissed by the learned Civil Judge-IV, D.I.Khan.
3. Aggrieved of the judgment/order dated 28-6-2008, the plaintiff/petitioner filed an appeal which was also dismissed by the learned Additional District Judge-V1, D.I.Khan on 14-2-2009, hence the instant revision petition by the petitioner.
4. Learned counsel for the petitioner argued that the impugned judgments/orders of the courts below are against law, facts and material on record hence not tenable; that whereas the petitioner/plaintiff had examined as many as three P.Ws. And was actively pursuing the case to conclude his evidence but the lawyers struggle for about two years made it impossible to do the same for which the petitioner could not be penalized; that on 25-6-2008 though the P.Ws. Were very much present before the learned trial court for recording their evidence but due to the absence of their counsel, the learned trial Judge did not record their statements and instead issued a notice under Order XVII, Rule 3, C.P.C. To the petitioner/plaintiff and even on 28-6-2008, when the petitioner/plaintiff was personally present before the learned trial Judge, still without examining him, his suit was dismissed by applying the provisions of Order XVII, Rule 3, C.P.C. Illegally and unjustifiably; that the learned appellate court too, dismissed the appeal in a cursory manner without attending to the submissions made by the petitioner and thus urged that the judgments/orders of both the courts below be set aside and the case be decided by the learned trial Court after affording an opportunity of adducing evidence to the petitioner.
5. On his turn, the learned counsel for the respondents strongly supported the impugned judgments/orders of the courts below and argued that being an old case of the year 1999, several opportunities were afforded to the petitioner/plaintiff from time to time but he avoided to produce his evidence on one flimsy pretext or another and finally the learned trial Judge was left with little choice but to serve the petitioner with a notice under Order XVII, Rule 3, C.P.C. And on his failure to do the needful, suit of the petitioner/plaintiff was dismissed and thus the impugned judgments/orders of both the courts below are very much in accordance with law and procedure and do not call for any interference through the instant revision petition.
6. Arguments heard and record perused.
7. No doubt, the matter in hand is an old one as the suit for possession of a house detailed in the plaint was filed by the petitioner/ plaintiff in the year 1999 where after the respondents/defendants submitted their joint written statement and accordingly as many as ten issues including the relief was framed by the learned trial Judge. Subsequently the petitioner produced his partial evidence through 3 P.Ws., but the evidence could not be concluded for various reasons and not necessarily on account of failure/neglect/refusal of the petitioner/ plaintiff to do the needful as is evident from the various order sheets spanning over a period of about six years till the suit was finally dismissed vide impugned judgment/order dated 28-6-2008 by the learned CJ-IV, D.I. Khan. As far as the period from March, 2007 till the impugned order dated 28-6-2008 was passed, the petitioner/plaintiff cannot solely be held liable for the non-production of his evidence as well as his learned counsel before the learned trial Judge. It is by now part of our history that when a tyrannical regime struck at the superior judiciary firstly in the month of March, 2007 and then on 3rd November, 2007 when emergency was imposed, the entire lawyers' community of the country went on one strike after another. During those days, invariably all the courts of the country wore a deserted look and the same continued till the lifting of the emergency and the restoration of the honourable judges of the honourable Superior Courts to their respective offices in a respectable manner. I have before me the order sheets of those days of the learned trial Judge where I have not been able to find the presence of the learned counsel for either party. This is just one aspect of the case. Even otherwise as per the order sheet No,81 dated 25-6-2008, both the petitioner/plaintiff and his witnesses were very much in attendance but their evidence was not recorded due to the absence of their learned counsel, though the learned trial Judge knowing fully well that the lawyers' community was observing strike could have and should have recorded the statements of the witnesses even in the absence of the learned counsel for the petitioner/plaintiff and in the event of refusal by the petitioner/plaintiff and his witnesses to do so, then the learned trial Judge could have served him with a notice under Order XVII, Rule 3, C.P.C. Similarly, on 28-6-2008, when the impugned judgment/order was passed by the learned trial Judge, the petitioner/plaintiff was again very much in attendance before the court, but still no effort was made by the learned trial Judge to record his statement. The learned appellate court too, dismissed the appeal of the petitioner/plaintiff in a cursory manner without attending to the record of the case.
8. For reasons stated above, this petition is allowed by setting aside the judgments/orders dated 28-6-2008 and 14-2-2009 of learned trial Court and learned appellate court on payment of cost of Rs,7,000/- to be paid by the petitioner to the respondents. The case is remanded to the learned Senior Civil Judge. D.I. Khan either to retain the case himself or entrust it to some other learned Civil Judge at D.I. Khan with the direction that appropriate opportunity of adducing evidence be afforded to the parties and then the case be decided on its own merits within a period of three months.