MUZAMIL AKHT AR SHABIR, J. Through this Civil Revision, the petitioner has called in question the judgment and decree dated 30.06.2017 passed by learned appellate court, whereby by dismissing the appeal filed by the petitioner the said court maintained the order dated 15.04.2015 passed by Civil Judge 1st Class, Faisalabad, through which suit filed by the petitioner for specific performance was dismissed under Order XVII, Rule 3 of the C.P.C. for non-production of evidence.
2. Brief facts of the case are that the petitioner filed a suit for declaration through specific performance of agreement to sell and confirmation of possession against the respondent Haji Mushtaq Ahmad (deceased), who was his real brother claiming in the said suit that House No. 275-B Peoples Colony No.1, Faisalabad, measuring 2 Kanal 13 Marlas and Messrs Ahmad Textile Industries, situated at Street No. 6, Mustafabad, Faisalabad, measuring 2 Kanal 7 Marlas and 1/2 sqft was equally owned by the petitioner and the respondent (who are real brothers), and the respondent had agree d to sell his share in the afore-referred property in consideration of Rs.
80,00,000/-, which consideration was received through agreement dated 22.10.2006 in the presence of witnesses and it was agreed that the petitioner could have the property transferred in his name as and when he desires.
Subsequently , the afore-referred suit was filed which was contested by the respondent, who died during the pendency of the suit and his legal heirs were impleaded in his place. On 15.04.2015 the said suit was dismissed by the learned trial court under Order XVII, Rule 3 of the C.P.C, for petitioner's failure to produce evidence and the petitioner's appeal filed there-against was dismissed on 30.06.2017 by the learned appellate court. Both the afore- referred orders/judgments are under challenge through this Civil Revision.
3. Learned counsel for the petitioner has argued that sufficient opportunities to lead evidence were not provided to the petitioner before closing his right to lead evidence.
4. On the other hand, learned counsel appearing on behalf of the respondents states that the matter had been pending for recording of the evidence of the petitioner for quite long time and at least 44 clear opportunities were provided to the petitioner to lead evidence before passing the afore-said order under Order XVII, Rule 3 of the C.P.C.
5. Heard. Record perused.
6. In the present case, the agreement dated 22.10.2016, specific performance of which has been sought by the petitioner is written on a plain paper instead of stamp paper , which agreement and payment of consideration has been denied by the respondent. Consequ ently, on 26.09.2012 issues were framed and the petitioner was directed to lead evidence. From 26.09.2012 to 15.04.2015 the matter was adjourned inter alia for recording of evidence on several occasions by fixing last opportuni ty on a few occasions. The witnesses of the petitioner attended the court only on 10.10.2012. Thereafter , the witnes ses did not appear till 15.04.2015, when the right of the petitioner to lead evidence was closed under Order XVII, Rule 3 of the C.P.C. Although it has been claimed that on various occasions the lawyers were observing strikes and the matter had been kept pending in the court for awaiting the decision of the High Court in the connecte d matter but it is observed from the record that on several occasions the matter was adjourned at the request of the petitioner seeking further opportunity to produce evidence which was not done and on several of those occasio ns the matter was adjourned by providing last opportunity to the petitioner which was not availed. Although the matter was stayed for some time to await the decision of the appellate court in a collateral matter between 30.07.2013 to 18.03.2015, the matter was again fixed for recording of petitioner's evidence on 31.03.2015, on which date the learned Presiding Officer was not available and the matter was adjourned to 06.04.2015, on which date despite provision of last and 'final opportunity the counsel for the petitioner did not appear and request through his clerk was made for adjournment for producing evidence and on the next date of hearing i.e., 08.04.2015 in the presence of the parties and in absence of the witnesses of the petitioner the matter was again adjourned at the request of petitioner's counsel to 15.04.2015 for recording of petitioner's evidence, on which date the court by observing that plaintif f-petitioner does not seem interested to proceed with the matter refused to grant further adjournme nt and dismissed the case due to want of evidence. On appeal filed by the petitioner the matter was got adjourned by the petitioner for the purpose of arguments on various dates until the court finally directed the petitioner to argue the matter vide order dated 15.05.2017 by giving last and final opportunity . On 29.05.2017, the matter was adjourned to 22.06.2017 but none of the counsel appeared, consequently the court observed that counsel for the parties are required to address their arguments and the appeal was adjourned for 30.06.2017 with the clear understanding that in case arguments were not advanced, the matter would be decided on the basis of available record. On 30.06.2017, after hearing the arguments of both the parties, the appeal was dismissed.
7. Learned counsel for the petitioner has argued that on sideline of the order sheet dated 30.06.2017 the signature of both the parties were obtained by the court in order to remand the matter throu gh a consent order , instead the court dismissed the appeal on merits without any lawful authority or justification and states that the said order is liable to be set-aside. The counsel for the respondent does not support the petitioner's afore-referred plea and states that the signatures were obtained to mark presence of parties as on the previous date they were not available in the court. There is divergence of stance of die parties relating to recording of proceedings through order dated 30.06.2017, which cannot be resolved by this Court without there being sufficient material available on the record to support contention of either party . In order to substantiate this claim, the petitioner could have instead of filing this Civil Revision before this Court filed an application before the same court for recall of the said order on the ground that the order does not depict the actual position on the record but the said course of action has not been preferred and remedy by way of filing Civil Revision before this Court has been adopted. As material to substantiate petitioner's plea of obtaining signatures is not available on the record , the court can proceed with the matter on the basis of law. Presumption of authenticity is attached to the judicial record in term of Article 129 of the Qanun-e-Shahadat Order , 1984, therefore, without any material being available on the record to show that signatures on the short order were taken for the purpose of remand, the position recorded .in the said order is presumed to be correct and no exception can be taken to the same and the order passed in the main appeal to that extent on the basis of signatures of the parties taken on the sideline of the said order . Reliance in this regard is placed on 2011 SCMR 1361 (Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others ), 2004 SCMR 964, (Fayyaz Hussain v. Akbar Hussain and others ) 2002 SCMR 1336 (Muhammad Ramzan v. Lahore Development Authority , Lahore ), 1992 SCMR 282 (Kamal Athar v. State ), 2010 YLR. 1498 (Muhammad Mansha v. Hashmat Ali and another ), 2007 MLD 1329 (Asmatullah v. Allah Nawaz and others ) and 2004 CLD 1 (International Multi Leasing Company v . Capital Assets Leasing Corporation Limited and another ).
8. As regards contention of the learned counsel for the petitioner that sufficient opportunities to record petitioner's evidence had not provided, it is observed from record that throughout the proceedings after framing of issues only on one date fixed on 10.10.2012 the witnesses of the petitioner have appeared in the court. It is observed that on various occasions last and final opportunity was provided to the petitioner to lead evidence at the trial stage and various orders mention absolute last chance. Thereafter , the petitioner took adjou rnments to argue the matter at appellate stage. Although the matter rema ined pending before the trial court between 30.07.2013 to 18.03.2015 to await the decision of the matter in collateral proceedings in a separate case, after receipt of the said order again opportunity was provided to the petitioner and on the pen ultimate date fixed previous to the closure of petitioner's right so produce evidence, the matter was adjourned at the request of the petitioner to provide opportunity to lead evidence, which was not availed despite opportunity having been provided.
9. The counsel for the petitioner has tried to argue that before closing the right of the petitioner to lead evidence the trial court was obliged to adjourn the matter for recording of evidence subject to payment of costs, which has not been done, therefore, the order of closure of petitioner's evidence and passing of decree is not sustainable in the eye of law. The provision of Order XVII, Rule 3 of the C.P.C. reproduced below does not show that before passing the final order the court has to pass an order directing the petitioner to lead evidence subject to payment of costs and such procedure is generally adopted by the courts in order to regulate their own proceedings and passing or non-passing of such order is discretionary with the court. The exercise of the said jurisdiction cannot be interfered by this Court in its revisional jurisdiction, because the same does not amount violation of any law or jurisdiction defect. Consequently , the afore-referred arguments of the counsel for the petitioner is without any substance and is replied in negative.
ORDER XVII RULE 3 "Court may proceed notwithstanding either party fails to produce evidence, etc. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith."
10. The petitioner has failed to establish that his conduct was not contumacious and he had been diligently pursuing the matter as witnesses of the petitioner were never available in the court despite last and final opportunity having been provided on several occasions. It is not the case of the petitioner that the matter could not proceed due to fault of other party , there fore, the courts below were justified to pass the afore-said order under Order XVII, Rule 3 of the C.P.0 and rightly concurrently dismissed the suit. No illegality or perversity in the afore- referred orders has been pointed out, whereby the impugned orders could be set-aside on the ground of suffering with some jurisdictional defect, consequently there is no reason to interfere in the same.
11. For what has been discussed above, this Civil Revision being IE devoid of any force stands dismissed .