' ABDUL RASOOL MEMON, J.---This revision petition calls in question the concurrent findings of the two courts below whereby the appeal filed by the petitioner, against the judgment and decree dated 22-5-2009 of IInd Senior Civil Judge Karachi East was dismissed by the learned 1st Additional District Judge Karachi East vide judgment and decree dated 18-4-2011.
2. Briefly, the facts leading towards this civil revision are that respondent/plaintiff Syed Hassan Jaffar filed a suit for declaration, possession and mesne profit against the petitioner/ defendant regarding a piece of his 25 feet plot. It is averred in the plaint that respondent/plaintiff being resident of Plot No, 188-A, situated at Nashtar Basti admeasuring 52-30 Sq. Yds. For last 25 years, after declaration as Katchi Basti, demarcations and regularization, was leased out to him by KMC vide lease deed registered No, 1889 Book No, 1 dated 27-10-1992 while a piece of land on western side of the plot of him came in cutting and making of a road, its occupant namely Rafique was shifted from there and was given another alternate plot; that after some time, the petitioner/defendant alleged to have forcibly occupied the area of road and constructed a hotel and also unauthorizedly occupied and encroached upon a portion of plot measuring about 25 sq.
Fit of the respondent/plaintiff and by such encroachment he also closed the door of his house hence he filed a suit seeking declaration of his ownership of 25 Sq. Ft. And encroachment thereupon by the petitioner/defendant as illegal and prayed for its possession and mesne profits for the period of unauthorized occupation.
3. This suit was contested by the petitioner/defendant through submission of his written statement wherein he has simply denied the leasing out plot in question to respondent/plaintiff by KMC for want of his knowledge arid in formal way challenged the maintainability of the suit on the ground of non-joining of KMC and original occupant of major portion of plot in question as party.
4. After framing of issues, evidence was recorded. The respondent/plaintiff filed his affidavit in evidence and was cross-examined. He produced the copy of lease of the suit property at Exh.P/1.
DDO Katchi Abadi filed a copy of Layout plan and the respondent/plaintiff side was closed on 13-2- 2009 while petitioner/defendant despite providing him chance failed to record his evidence, consequently his side was closed. After hearing the learned counsel for parties, the trial court decreed the suit vide judgment and decree dated 21-4-2009 and the same was maintained in appeal vide judgment dated 18-4-2011 by 1st Additional District Judge Karachi East. Feeling aggrieved the petitioner/defendant has filed instant revision which is before me for adjudication.
5. Mr. Muhammad Yakoob learned counsel for petitioner contended that on 17-8-2004 the suit was dismissed in non-prosecution for non-payment of cost for summoning the witnesses; that after dismissal of the suit neither the petitioner nor his counsel ever received any notice of the restoration application; that the trial court passed the decree without allowing the petitioner to place his case during trial; that the judgment of the trial court suffers from inherited defect in the trial and the learned appellate court has not complied with the provisions of Order XLI Rule 31, C.P.C.
And has decided the case in violation of the parameters prescribed by the superior Courts therefore, interference in revisioinal jurisdiction is required. In support of his contention he placed reliance on the cases of (1) Mian Rahim Bux Qadri v. Bashir Ahmed (PLD 1976 Karachi 738) (2) Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others (PLD 1992 Supreme Court 263), (3) Mst. Aisah v. Mst. Fatima and others (1991 CLC 1499), (4) Mst. Inayat Bibi v. Nazir Ahmed and others (1991 CLC 1660), (5) Muhammad Mustaqeem through his Legal Heirs v. Abdul Haleem through his Legal Heirs and others (1992 CLC 435), (6) Manzoor-Ul-Haq and 3 others v. Mst.Kaneez Begum (1993 CLC 109), and Karachi Development Authority and 2 others v. Taj Mahal Nursery and 3 others (2000 CLC 1352).
6. Conversely, learned counsel appearing on behalf of the respondent by favouring the impugned judgments has opposed the instant revision petition with vehemence by maintaining that after dismissal of suit on 17-8-2004 in non-prosecution, the notice of restoration application was published in newspaper and in pursuant thereof the counsel for the applicant appeared in the trial court on 25-10-2007 and received the copy of application for restoration, thereafter he continuously appeared in the court but avoided to argue on the application, ultimately the restoration application was allowed on 16-7-2008; that applicant deliberately did not appear and adduce evidence as he was in illegal occupation of the portion of plot of the respondent/ plaintiff and tried to linger on the matter. He has further submitted that the appellate court has given its verdict on vital issue and the trial court has given issue wise finding, thus no prejudice of any sort has been caused to the petitioner/defendant. He has placed reliance on the cases of (1) Mst.
Husna Bano v. Faiz Muhammad Magsi and another (2000 CLC 709), (2) Aqeel Hussain and others v.
Mst. Alia Bibi and others (2006 CLC 297), (3) Abdul Hakeem v. Habibullah and 11 others (1997 SCMR 1139), (4) Islamic Republic of Pakistan and others v. Syed Najaf Ali Shah (1989 MLD 4412) (5)
Supercon Limited v. Eastern Construction Limited and 2 others (1987 CLC 1566), (6) Choudhry Haq Nawaz Chohan v. Choudhry Tariq Azam and 43 others (1994 CLC 1530), and (7) The Hub Power Co. v. WAPDA (1999 CLC 1320).
7. The moot question for determination by this Court is that whether proper opportunity was provided to petitioner to plead and place his case before the Courts below. Perusal of R & Ps of the original, suit reveals that the suit of the respondent/plaintiff was dismissed in non-prosecution on 7-8-2004(sic) and on 1-9-2004 restoration application was filed, after non-service of notice in ordinary way, on 26-1-2007 notice was published in the newspaper, on 21-2-2007 the service of notice against the petitioner/defendant was held good. On 25-10-2007 advocate for applicant/defendant appeared in court and received copy of the application under Order 9 Rule 9, C.P.C. As a token of receipt not only he put his signature but also clearly wrote "copy received" but even after that he neither argued the matter nor filed any objection to the application for restoration though continuously appeared on, two dates of hearings viz: 25-2-2008 and 19-3-2008, while the counsel for respondent/plaintiff advanced his arguments and the matter was fixed for orders on 24-3-2008 and in the meanwhile the counsel for the petitioner/defendant was allowed to argue his case but failed to avail opportunity even then in the interest of justice another chance was given to him and on 5-4-2008 a last chance was granted but did not argue on the said application, consequently, leaving no other option on 16-7-2008 the restoration application was allowed and when the matter was fixed for evidence of petitioner's side but none appeared on his behalf and produced evidence, ultimately his side was closed and on the basis of evidence on record matter was decided and suit was decreed. Thus in view of the above, it seems that sufficient opportunities were provided to the petitioner and he deliberately and intentionally did not avail it for the reasons best known to him. So far the merit of the case is concerned, although this Court is not called upon to re-apprise the evidence on record in exercise of its revisioinal jurisdiction, yet, as the evidence available on record is of one sided. I have gone through the evidence and find that the reasoning recorded by the Courts below are in consonance with the evidence on record and no pre-judice seems to have been caused to the petitioner. The document viz: lease deed (Exh.P/I) heavily relied upon by the respondent to substantiate his claim has been satisfactorily proved through his statement. He in his affidavit-in-evidence stated that he was granted proper lease of the plot No, 188-A measuring about 52-30 sq. Yds which was leased out to him by KMC. This contention of respondent was not challenged in cross-examination thus deemed to have been admitted by the petitioner. He further stated that one Rafique was shifted and he was given an alternate plot and then on his western side became open and he carved the door there but in September, 1994 petitioner/defendant forcibly and illegally occupied the piece of plot of him measuring 25 sq. Ft. Unauthorizedly in cross-examination, no suggestion was given as to in what capacity petitioner/defendant is in possession of the said piece of plot in question. On the other hand, petitioner has failed to establish his occupation over plot in question in legal way by way of producing any sort of evidence. The trial court as well as the Appellate Court have elaborately discussed every aspect of the case and have dealt with the same in detail, leaving no room for further consideration. The contention of learned counsel for petitioner regarding violation of provision of Order XLI, Rule 31, C.P.C. Is also devoid of force as the appellate Court after framing of point for determination decided the appeal. With profound respect the citation relied upon by the learned counsel for petitioner has no relevant application so far the facts and circumstances of this case are concerned. On thorough examination of all the ambient circumstances of the case and the reasoning given by the trial Court and the First Appellate Court I am convinced that neither there is misreading of the evidence nor the finding of the Courts below are perverse. It could not be established that the Courts below exercised jurisdiction illegally or with material irregularity. The revision petition is without merits and is, therefore, dismissed.