' This revision petition under section 115, C.P.C. Is directed against order, dated 15th April, 1982 of the learned Additional District Judge, Lahore whereby he dismissed petitioner's appeal and maintained the judgment and decree, dated 12th September, 1974 of the learned Civil Judge, Lahore.
2. The facts in brief giving rise to this petition are that Bagh Din respondent instituted a suit for possession of one room and a part of Verandah against the petitioner and 2 others on the ground that the same formed portion of Property No, 39-S-5 Ahata Hakim Singh, Dharampura, Lahore transferred by the Settlement Department in his favour.
' The suit was resisted and it was pleaded that the property in dispute was portion of Property No, 39-S/6 which was purchased by the defendants from Sultan Beg the transferee of the same. Sultan Beg was impleaded as defendant No, 3 but he did not contest the suit and was proceeded ex parte. The learned trial Court formulated following issues arising out of the pleadings of the parties :
(1) Whether this Court has no jurisdiction to try this suit ?
(2) Whether the suit is not properly valued for the purposes of court-fee and jurisdiction.
(3) Whether the plaintiff is estopped to bring this suit ?
(4) Whether the plaintiff is the transferee of the premises in dispute ?
(5) Relief.
' The respondent's evidence was recorded by the learned trial Court but the petitioner did not produce evidence and the learned trial Judge had to close the evidence under Order XVII, rule 3, C.P.C. On the strength of the evidence already on the record the learned trial Court decreed the suit of the respondent. The judgment and decree of the learned trial Court was unsuccessfully assailed in appeal. Hence this petition.
3. Learned counsel for the petitioner contended that the learned lower Courts erroneously applied the provisions of Order XVII, rule 3, C.P.C. In closing the evidence of the petitioner. It was submitted that the petitioner had deposited the process fee for procuring attendance of witnesses in Court. It was the responsibility of the Court to cause production of evidence and in case of failure of the witnesses to appear in Court the petitioner could not be penalised so as to deprive him the opportunity of leading evidence. It was next submitted that the evidence on record was misread by the learned lower Courts and the judgments and decrees under revision are, therefore, not maintainable. Learned counsel further contended that the learned lower appellate Court had decided only issue No, 4 and the observation made in the impugned judgment that other issues were not pressed by the learned counsel for the petitioner was incorrect.
4. Learned counsel for the respondent on the contrary submitted that several opportunities were provided to the petitioner for production of evidence and the learned trial Court resorted to coercive measures for securing attendance of the witnesses but as the petitioner failed to pay process fee nor pointed out the witnesses whose summons were issued ; the learned trial Court rightly closed the evidence. It was also submitted that the learned counsel appearing on behalf of the petitioner before the lower appellate Court only addressed the Court on issue No,
4. The other issues were not pressed and it was for that reason, that the learned Additional District Judge, Lahore observed in the impugned order that the remaining issues were not assailed by the parties during the arguments.
5. I have considered the arguments advanced by learned counsel for the parties and have also gone through the record with their assistance. As far as the first contention of learned counsel for the petitioner regarding the closing of evidence is concerned the learned lower appellate Court dealt with the matter in detail in the impugned order ; relevant portions thereof are reproduced hereunder for facility of reference : "The record of the case shows that by the date 2nd April, 1974 the appellants were given sufficient opportunities to produce their evidence but for the said date the summons were not returned by the agency though the summons of the witness had been issued on 16th February, 1974 and for this reason the learned trial Court did not think it proper to proceed under Order XVII, rule 3, C.P.C. On 23rd April, 1974 again the learned trial Court had adopted coercive method to force the attendance of the record-keeper of the Settlement Department whereas the record-keeper of the District Courts was summoned through ordinary summons. It was, however, ordered that the service of both these witnesses would be the responsibility of the appellants who would identify them. Again on 15th May, 1974 the learned trial Court directed the issuance of warrants of Zahoor Ahmad another summoned P.W. Of the appellants but for this date the warrants of arrest of the record keeper of the Settlement Department could not have been issued because the appellants had not deposited the necessary process-fee. From 5th May, 1974 the case was adjourned to 5th June, 1974 for the issuance of warrants of arrest of the record-keepers of the Settlement Department and the District Courts on payment of process-fee etc. And it was made clear that no further opportunity would be given to the appellants. On 5th June, 1974 again the summoned witnesses of the appellants were directed to be summoned through warrants and summons in accordance with the previous order because the appellants had not identified the witnesses on whom the said warrants and summons were to be executed and so he was given yet another opportunity for the said purpose and the case adjourned to 26th June, 1974 for the evidence of the appellants. The appellants however, did not pay any process-fee for 26th June, 1974 nor put in any efforts to point out the witnesses whose summons were to be issued and so the learned trial Court closed the evidence of the appellants under Order XVII, rule 3, C.P.C. And adjourned the case for the statement of the special attorney of the appellants to 27th June, 1974. Again two adjournments were given by the learned trial Court for the statement of the special attorney of the appellants but on 9th September, 1974 again the special attorney of the appellants made a statement that his counsel was ill and therefore an adjournment be given and so the learned trial Court closed the statement of the special attorney of the appellants also on 9th September, 1974 with the observations that the reasons given by him for the adjournment were contradictory."
' He further observed : "I may remark here that the evidence of the respondent was closed on 1st April, 1972 but the appellant could not procure the presence of their witnesses till 26th June, 1974 in spite of several opportunities given to them by the learned trial Court. It is true that to force attendance of public servants who are summoned as witnesses by a party is the responsibility of the Court but at the same time it cannot be said that a party by depositing the diet-money and process-fee is absolved of his responsibility to secure the attendance of his witnesses in Court."
It is established that the petitioner had been delaying the disposal of the case for a period of 2 years and made no efforts to produce evidence or cause production of evidence in support of his case. The provisions of Order XVII, rule 3, C.P.C. Were attracted in the circumstances of the case and in my view rightly applied by the learned trial Judge. Mere deposit of process-fee and diet-money is not sufficient to absolve the petitioner of his responsibility of leading evidence in the case. The respondent was in possession of House No, S.E., 39-S/5 and the same was transferred to him in the year 1960. The Permanent Transfer Deed was issued in his favour whereas the Property No, 39-S-6 was sold to Sultan Beg, the predecessor-in-interest of the petitioner in auction subsequently.
Sultan Beg had earlier settled the dispute in respect of the ' disputed property with the respondent and made a statement to the effect that the property in dispute was part of House No, 39-S/5 and was not a portion of House No, 39-S/6. In fact Sultan Beg has relinquished his claim over the disputed part of property. The petitioner and others have stepped into the shoes of Sultan Beg, their predecessor.In-interest and would be estopped to claim the disputed property, the claim regarding which had already been relinquished by Sultan Beg. Mere assertion of the learned counsel for the petitioner that other issues were pressed before the learned lower appellate Court except issue No, 4 cannot be accepted in view of the observation recorded to the contrary by the learned lower appellate Court in the last paragraph of the judgment and also for the reason that the same finds ,no support from the memorandum of appeal filed by the petitioner.
6. The unanimous conclusion drawn by the learned lower Courts that the disputed property formed part of House No, 39-S/5 transferred to D the respondent Bhagh Din is subject to no exception and cannot be interfered with in revisional jurisdiction of this Court.
7. In the result I find no merit in this petition and the same is hereby dismissed. As the decree passed in favour of the respondent for possession of the disputed property stands already executed there shall be no order as to costs.