' This is a Second Appeal against the judgments/decrees dated 28-7-1977 and 12-7-1978 passed by the learned Senior Civil Judge, Sukkur and the learned III Additional District Judge, Sukkur respectively in Civil Suit No, 56/1973 and Civil Misc. Appeal No, 113/1977.
' The relevant facts leading to the filing of the above appeal are that the shop in question was transferred by Settlement Department to one Abdul Majeed, who surrendered the same in favour of the respondent through an agreement of association. In pursuance of the above agreement of association a P T.
0. Was issued on 2-11-1969 in favour of the respondent. It seems that this transfer was confirmed by the Additional Settlement Commissioner on 23-6-1971. It is the case of the respondent that that aforesaid Abdul Majid was in fact in possession of the present shop and he surrendered the above shop to the respondent under, the agreement of association and received the consideration under the above agreement of association. It is also further case of the respondent that on 14-6-1971 the appellant broke open the lock of the shop and occupied the shop. The matter was reported to the police and a criminal case was initiated against the present appellant. The respondent also served a legal notice and thereafter filed the aforesaid suit for possession and mesne profits. The above suit was resisted by the present appellant and on the basis of the pleadings of the parties the learned trial Court framed six issues and decreed the suit. The appellant being aggrieved by the above judgment/decree filed Civil Appeal No, 113/1977, which was dismissed by the learned III Additional District Judge, Sukkur through his aforesaid judgment/ decree dated 12-7-1978. The appellant being aggrieved by the above two judgments/decrees has filed the present Second Appeal.
2. In support of the above Second appeal Mr. G. M. Saleem learned counsel for the appellant has made following submissions :-
(I) That the. Learned trial Court decreed the suit without hearing the appellant on merits of the case and, therefore, the same was in violation of section 33 read with Order XX, rule 1, C. P. C.
(ii) That the appellant was not provided a reasonable opportunity to adduce his evidence and his side was, improperly closed.
(iii) That the P. T.
0. Was issued in respect of the shop and the upper portion though Abdul Majid in his C. S. Application applied for only shop.
' On the other hand Mr. A. H. Zaidi learned counsel for the respondent has contended that on 19-7- 1977 when the application of the appellant for reopening of his side was dismissed neither the appellant nor his counsel was present, and therefore, the learned trial Court was justified to pronounce the judgment on the basis of the evidence on record as there was no evidence in rebuttal to the evidence of the respondent and that in any case the appellant has been heard by the first appellate Court at length as well as by this Court in the second appeal and therefore, irregularity if any stands cured.
3. In support of the first submission Mr. G.M. Saleem has invited my attention to the diary of the trial Court. From the diary, it seems that the respondent's side was closed on 12-5-1975. After that the case was fixed for the evidence of the appellant on 5-6-1975. On the latter date and on subsequent four dates the case was adjourned at the request of the present appellant for production of the evidence. However, on 6-11-1975 the respondent moved an application under Order XIII, rule 2, C. P.
C. On which notice was ordered for 5-1-1976. On the latter date the above application was granted and the respondent was recalled for production of the document which was sought to be produced through the above application but no cross-examination was directed and as a matter of fact the application was granted by consent. After that the case was again adjourned to 4-2- 1976 for the evidence of the appellant. It was adjourned to 10-3-1976 and then to 6-4-1976 at the request of the appellant. However, on i7-5-1976 it was adjourned at the request of the Advocate for the respondent. It seems that on 15-6-1976 the appellant moved an application for adjournment on the ground that the documents were with the Advocate who was conducting the writ petition but the above application was dismissed by the learned trial Court and the appellant's side was closed. After that on 16-7-1976 the appellant filed an application for reopening of his side and production of certain documents. The cost for the notice was paid on 23-7-1976 and after that the case was adjourned to 19-7-1976 for hearing of the appellant's above application. However, on the latter date neither the appellant nor his counsel was present and, therefore, the above application was dismissed by the learned trial Court. After dismissing the above application the learned trial Court fixed the case for judgment on 28-7-1977 and the judgment was pronounced on the above date. From the diary, it seems that the learned trial Court after dismissing the appellant's application for reopening of his side on 19-7-1977 in the absence of the appellant and his Advocate proceeded with the matter and posted the case for pronouncement of the judgment. This irregularity might have been fatal in case there would have been some evidence on record in rebuttal to the respondent's evidence. It is an admitted position that no evidence whatsoever was produced by the appellant in rebuttal to the respondent's evidence though he was given several opportunities. In this view of the matter this Court has to consider whether it would be just and proper to remand the case to the trial Court after nearly 10 years from the date of institution of the above suit. In the instant case the appellate Court had heard the appellant at full length and I had also called upon the learned counsel for the appellant to show me that the judgment of the trial Court is supported by evidence on record which he was unable to show. Since the appellant has been heard by two Courts and since there is no evidence in rebuttal to the evidence produced by the respondent on record and as even otherwise finding of the learned trial Court would not have been otherwise than what has been recorded. I am, therefore, not inclined to set aside the judgments of the two Courts below on the above ground. It may, also be stated that no express plea of the nature in question was agitated by the present appellant before the first appellate Court.
4. As regards the second contention that the appellant was not given reasonable opportunity to produce his evidence and as a matter of fact the case proceeded ex parte, it may again be pointed out that the case was adjourned for the production of the evidence by the appellant on a number of dates namely, on 5-6-1975 to 23-6-1975 and thereafter to 22-7-1975 and 17-9-1975 and even thereafter. In this view of the matter it cannot be urged that the learned trial Court was not justified in closing the side of the appellant. It is, true that on 5-1-1976 the respondent was recalled by the trial Court for production of document in pursuance of an application under Order XIII, rule 2, C. P. C. But the above application was granted by consent of the appellant and no cross- examination was directed against the production of the above document. The discretion exercised by the learned trial Court in closing the side or the appellant cannot be said to be arbitrary or capricious.
5. Reverting to the third contention of the learned counsel for the appellant that the original applicant had filed C. S. Form for the transfer of the shop whereas P. T. D. Has been issued for the shop as well as for the upper portion and, therefore, a fraud has been committed, it will suffice to observe that this question cannot be agitated by the appellant in a second appeal. Even otherwise, in this connection it may be .Pertinent to point out that the appellant had assailed the transfer of the property up to the level of the 'High Court by filing a writ petition which was dismissed in default and thereafter no further proceeding has been taken to challenge the P. T. D. Issued in favour of the respondent for the shop as well as for the upper floor.
6. For the aforesaid reason I do not find any justification to disturb the concurrent finding of the two Courts below and, therefore, the appeal is dismissed with no order as to costs. However, the appellant has been granted two months time to hand over the vacant possession of the shop to the respondent on the condition that in case the appellant fails to hand over the vacant possession after the above period of two months the trial Court shall issue a writ of ejectment without any further notice to the appellant.