CH. SHAHID SAEED, J. --- Brief facts of the case are that on 27.01.2011 petitioner filed a suit for specific performance of agreement dated 22.01.1984 against the respondents. Respondents also filed a suit for declaration against the petitioner regarding the same property. Both the suits were consolidated and learned Trial Court vide order dated 05.11.2002 framed consolidated issues.
Thereafter number of opportunities were granted to the petitioner but unfortunately the evidence of the petitioner was not recorded. During the said period respondents filed an application U/O. 17, Rule 1, CPC for dismissal the suit of the petitioner, the said application was dismissed by the learned Trial Court. Petitioner preferred a civil revision against the said order which was allowed and the suit of the petitioner was dismissed on 07.07.2005. Feeling aggrieved by the said judgment & decree petitioner has preferred the instant writ petition.
2. After hearing the arguments of learned counsel for the parties find that on 26.05.2004 whole the evidence of the petitioner was available except one witness but the case was adjourned on the objection raised by the respondents. Thereafter on 28.07.2004 again the complete evidence except one witness was present but on the said date two applications were filed one from petitioner for permission of filing list of witnesses by condoning delay and the other by respondent No. 1 U/O 17, Rule 1, CPC for dismissal of the suit. The application filed by the respondents was dismissed by the learned Trial Court but the learned Appellate Court without applying its judicial mind accepted the same and dismissed the suit of the petitioner illegally and without lawful authority. It is clear from the order sheet that on both the crucial dates complete evidence of the petitioner was available except one witness. If the situation was the same as stated above, then the learned Trial Court was bound to record the statements of the PWs which were available on the said dates but the learned Trial Court adjourned the case only on the whim and wish of the respondents. It is also pertinent to mention here that one application of the petitioner U/0. 16, Rule 1, CPC for permission to file the list of the witnesses is also pending which yet has not been decided by the learned Trial Court.
3. So without touching the merits of the case the instant writ petition is accepted and the impugned' judgment & decree passed by the learned Appellate Court is set. Aside. The case is remanded to the learned Trial Court with a direction to decide the application of the petitioner U/O.
16, Rule 1, CPC for permission to file the list of witnesses firstly and if the same is allowed then to provide sufficient time to the petitioner to produce his evidence. Parties are directed to appear before the learned Trial Court on 05.10.2011.
Civil revision /Case remanded.