1. MUHAMMAD AFZAL ZULLAH, J.-- Leave to appeal has been sought from judgment, dated 20th March, 1984, of the Lahore High Court; whereby the petitioners' Regular First Appeal arising out of a suit for specific performance decreed in favour of the respondent-side, was dismissed.
2. The facts as narrated in the impugned judgment are that the petitioner-side "entered into an agreement to sell a plot of land, measuring 2 Kanals, on Egerton Road, Lahore. The said plot was formerly evacuee property and had been provisionally transferred to the appellants. The sale price was fixed at 54,550. The appellants received Rs. 15,000 by way of earnest money at the time of execution of the agreement. The remaining part of the sale price was to be paid within 30 days of the appellants receiving the permanent transfer deed from the Settlement Department. The appellants did not obtain the permanent transfer deed for a long time. This omission on their part respondent No.1 to file a suit on 28-6-1971 for a mandatory injunction seeking a direction to the appellants to obtain the permanent transfer deed. While this suit was pending the appellants obtained the permanent transfer deed on 18-4-1974. The case of respondent No.1 is that the appellants did not inform her of the acquisition of the permanent rights. However that may be;, on 14-4-1977 she filed the present suit for specific performance of the agreement dated 19-7-1961.
3. "The appellants resisted the suit and raised a number of legal objections. With regard to merits they did not dispute that they had entered into an agreement to sell the land in dispute with respondent No.1 but alleged that they had executed the deed of 19-7-1961 under misrepresentation of facts and wrong assumptions and that the consideration for the sale was grossly inadequate."
4. Both the suits were consolidated and tried together. As-the agreement to sell had not been denied, therefore, the burden of those issues where under the petitioner-side could avoid implementation of the agreement was placed on them. They were directed to produce their evidence on 15-2-1978 but it was not produced. They had not even submitted a list of witnesses within the period prescribed by law nor had they obtained any process for summoning of any of the witnesses. They, instead, made an application for framing of some additional issues which was partly allowed and they were afforded another opportunity of producing evidence on 8-4-1978. Again the evidence was not produced, on the pretext that a Revision had been filed in the High Court. Bat this statement was not true. As noted by the High Court in the impugned judgment no such Revision had been filed. The learned trial Court refused to adjourn the proceeding and treating it as a case covered by Order XVII, Rule 3 of the Code of Civil Procedure, petitioners' evidence was closed. The case was adjourned for arguments to 9-4-1978 on which date the petitioners had changed their counsel who wanted time to prepare the case for arguments. The case was adjourned to 10-4-1978 when the petitioners' counsel again sought an adjournment on a pretext, which the High Court has described as filmsy. The learned trial Judge accordingly refused to adjourn the proceedings further and after observing that the suit did not require any elaborate argument proceeded to decide the same. The first suit regarding mandatory injunction for obtaining of the permanent deed was dismissed as having become infructuous as the petitioner-side had in fact obtained permanent transfer during the pendency of that suit. The other issues regarding which burden was placed on the petitioners were decided against them. And as the agreement to sell had not been denied a decree for specific performance was passed. It was challenged in the High Court in First Appeal.
5. The learned Judges of the Division Bench after examination of the circumstances necessitating adjournments in the trial of the suit agreed with the learned trial Court that the closing of the evidence of the petitioner side was fully justified. But keeping in view the circumstance that the adjournment of the suit on 15-2-1978 to 8-4-1978 was not on the asking of the petitioners /defendants, it was held the provisions contained in Rule 3 of Order XVII were not attracted.
6. However they also held that the trial Court had nevertheless the power to close the evidence of the petitioners as it did, under sub-rule (3) of Rule 1 of Order XVII (as added in Punjab in 1937)--it provided that where sufficient cause is not shown for the grant of an adjournment under sub-rule
(1) of Rule 1 of Order XVII, "Court shall proceed with the suit forthwith". The learned Judges on this aspect observed as follows: "In the circumstances the learned trial Court could while proceeding with .The suit under sub-rule
(3) ibid close their evidence so as to get to the next stage in the trial. This is what it precisely did. As mentioned earlier the appellants had not denied execution of the agreement to sell but were avoiding its implementation on a number of grounds. The onus of establishing those grounds which were incorporated in a number of issues was placed upon them. When they failed to produce any evidence the learned trial Court took the next step in the proceeding which was to fix a date for the hearing of arguments, we can find no fault with the order of the learned trial Court in this regard."
7. The petitioners' appeal having been dismissed by the High Court, they have now sought leave to appeal.
8. Learned counsel for the petitioners has contended that the High Court having itself ruled that the provisions of Order XVII, Rule 3 not being available to the learned trial Judge for closing the petitioners' evidence, for the same reasons there was no justification to hold that the evidence could be closed under Order XVII, Rule 1 (3); that the first suit for mandatory injunction having been dismissed by the trial Court, the second suit could not be decreed on ground of principle of res- judicata--learned counsel stated in this behalf that by the process of various amendments made in the plaint of the first suit it had for all practical purposes become similar to the second suit. There fore, one having been dismissed the other could not be decreed; and lastly that the trial Court should have in the circumstances of this case allowed further time to the petitioners to produce evidence and that failure to do so has resulted in grave miscarriage of justice.'.
9. As already noted, the view of the learned Judges of the High Court that provisions of Order XVII, Rule 3 were not attracted was not based on any finding with regard to the merits of the refusal by the trial Court to grant adjournment to the petitioners. It has been held in the impugned judgment to be fully justified. Rule 3 of Order XVII was held to be inapplicable on a purely technical ground, namely, that the adjournment of the suit on 15-2-1978 to 8-4-1978 was not on the asking of the petitioners. Although keeping in view the language used in the order dated 15-2-1978 it could be argued that Order XVII, Rule- 3 was also attracted in this case, we do not consider it necessary to examine that aspect any further because in our view in so far as the facts regarding adjournments are concerned sub-rule (3) of Rule 1 of Order XVII as held by the High Court, was also fully attracted in this case. And if that rule required the trial Court to proceed with the suit forthwith when sufficient cause is not shown for the grant of adjournment sought by the petitioners then the approach of the High Court in this regard did not suffer from any infirmity, legal or otherwise. The first argument of the learned counsel has, therefore, no force.
10. It is correct that the first suit filed by the respondent side seemingly appeared to be for the enforcement of the agreement to sell but on deeper scrutiny it is observed that specific performance could not be asked by the plaintiff (of the agreement to sell) unless and until the would be vendee had taken a particular step, namely, of obtaining the permanent transfer documents. It was in this context, therefore, that instead of seeking the specific performance the plaintiff justifiably sought the assistance of the Court to compel in the first instance the would be vendee to obtain transfer documents from the Settlement Department. Without that the plaintiff could have been advised that the suit for specific performance might not be competent. And when during the pendency of that suit the defendant obtained the transfer deed the said suit fructified and had become infructuous. Therefore, the trial Court rightly held it so. The argument of the learned counsel that by subsequent amendments the first suit had been, changed into a suit for specific performance, besides being without' c1ny support of material placed on the record of this petition, was not pressed before the High Court. We, therefore, do not attach any importance to it.
11. The last argument of the learned counsel relates to the merits of the case regarding the refusal of the trial Court to grant to the petitioners further adjournments which aspect having been carefully looked into by the High Court, we have no reason to differ with the conclusions reached in the impugned judgment.
12. There is no merit in this petition, the same is, therefore, dismissed.