SYED IFTIKHAR HUSSAIN SHAH, J.---The petitioner has called in question the legality of the order dated 16-7-2012 passed by the learned Additional District Judge, Chichawatni District Sahiwal whereby an application made by the petitioner for the summoning of Mst. Maroof Begum respondent No,3 for recording her better statement was dismissed.
2. The petitioner instituted a suit for seeking declaration to the effect that he is owner in possession of the land measuring 38 kanals 8 marlas situated in Chak No,110/12-L Tehsil Chichawatni District Sahiwal on the basis of oral gift dated 3-2-2000 and defendants should be permanently restrained from interfering in his possession and from further alienating the same.
3. The suit was contested by the respondents and it was denied that the disputed property was ever gifted to the petitioner. From the divergent pleadings of the parties, the following issues were framed:-
(1) Whether the defendants gifted the suit property to the plaintiff on 3-2-2000 in the presence of the witnesses as prayed for? OPP.
(2) Whether the plaintiff is entitled to the decree for declaration with permanent injunction as prayed for? OPP.
(3) Whether the plaintiff has no cause of action to file this suit? OPD.
(4) Whether the suit is based on the mala fide and the plaintiff has not come to the court with clean hands? OPD. -
(5) Whether the suit is false, frivolous and baseless and the defendants are entitled to get special costs under section 35-A of C . P. C . ? OPD..
(6) Relief.
4. Learned trial Court after recording the evidence and hearing the parties dismissed the suit with costs vide judgment and decree dated 26-9-2011.
5. The petitioner preferred an appeal against the judgment and decree dated 26-9-2011. During the pendency of the appeal, the .Petitioner made a petition for summoning of Mst. Maroof Begumrespondent for recording her better statement which was dismissed. Hence the present revision petition.
6. Learned counsel for the petitioner has contended that the respondent Mst. Maroof Begum never appeared personally before the trial Court and has not got recorded her statement. Therefore, an application was made to summon her for recording her better statement. Learned lower appellate Court has dismissed the application arbitrarily without considering that her better statement is necessary for the just decision of appeal.
7. I have heard the learned counsel for the petitioner and have also gone through the record.
8. The petitioner has based his claim on the basis of oral gift dated 3-2-2000 alleging that the respondents, who are his real sisters, have gifted the disputed property to him. The respondents have denied that they have ever donated the disputed property to the petitioner. Learned trial Court after recording evidence and hearing the parties concluded that the factum of oral gift has not been proved and dismissed the suit vide judgment and decree dated 26-9-2011.
9. During the pendency of the appeal before the learned Addl. District Judge, the petitioner made a petition for calling Mst. Maroof Begum for recording her Metter statement in the light of the provisions of Order 10 Rule 2, C.P.C.
10. Rule 2 of Order 10, C.P.C. Reads as under:-- Oral examination of the party or companion of party: ' At the first hearing of the suit, or at any subsequent hearing, any party appearing in person or present in Court, or any person able to answer any material question relating to the suit by whom such party or his pleader is accompanied, shall be' examined orally by the court ; and the Court may, if it thinks fit, put in the course of such examination questions suggested by either party.
The application for summoning of Mst. Maroof Begum respondent was made during the pendency of appeal which is required to be disposed of in the manner and procedure prescribed in Order XLI, C.P.C. There is no provisions in the said order that the parties-will be summoned by the appellate Court for rec.: -ding their better statement. Under Order XLI, Rule 27, C.P.C. Appellate Court can allow the production of additional evidence provided the appellate Court required any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. But there is no provision for summoning any party for recording better statement.
12.. The learned lower appellate Court is supposed to decide the appeal of the present petitioner in the light of the evidence available on record as both the parties have already produced entire evidence regarding their respective contentions. There is no provision regarding the summoning of the parties for recording their better statement while hearing an appeal. Under Order X, C.P.C., the only trial Court is empowered to examine the parties for the clarification of the pleadings and in order to ascertain the real controversy between the parties.
13. In the instant case, the real controversy between the parties was that whether Mst. Maroof Begum respondent along with her sister had gifted the disputed property to the petitioner or not and the parties have already led evidence in this respect and only reappraisal of evidence is required by the appellate Court. Therefore, the impugned order declining the request of the petitioner for summoning of Mst. Maroof Begum respondent for recording her better statement is in accordance with law. Learned counsel for the petitioner has failed to point out any illegality or material irregularity in the impugned order so the same is hereby maintained.