' SH. MUHAMMAD ASADULLAH, J.--The respondents filed a suit for recovery of Rs.1,19,070 as damages, mesne profits or compensation for use and occupation of the land in dispute measuring 66 Kanals and 3 Marlas at the rate of Rs.50 per Kanal per mensem for a period of 3 years from 1-1-1962 to 31- 12-1964 as also for the future up to the date of decision of the case. The case of the respondents was that they have purchased the land in dispute from various owners through various sale-deeds and found that the land in dispute was being used by the appellant for dumping, night soil, rubbish and garbage etc. , but when they asked the appellant to pay compensation to them for its use and occupation they did not pay anything to them. As such they claimed the mesne profits/compensation at the abovementioned rate, for the said period as also for future till the decision of the case. The case was contested by the appellant alleging that the suit was not maintainable in its present form, that a civil Court has no jurisdiction to try the suit; that the respondents were not owners of the suit land; and that the compensation claimed was excessive.
They alleged that the previous owners had leased out the land in dispute to them at the rate of Rs.50 per Acre per year for dumping of rubbish etc. And the respondents were not entitled to claim compensation at more than this rate. Following issues were framed:-
(1) "Whether the plaintiffs' suit in the present form is not maintainable? O.D.
(2) Whether the civil Court has no jurisdiction to try the present suit? O.D.
(3) Whether the plaintiffs are the owners of the suit land? O.D.
(4) If issue No.3 is proved what amount of compensation if any are the plaintiffs entitled to receive from the defendants? O.P.
(5) Relief."
' All the issues were decided in favour of the respondents by the learned Civil Judge, 1st Class, Lahore and as a consequence the suit was decreed for Rs.4,92,815 with costs. This included future compensation from 1-1-1965 to 30-5-1974 (the date of decree). This first appeal has been filed by the appellant on the same grounds and allegations as were taken before the learned trial Court. An additional ground has been taken that the learned trial Court wrongly closed the evidence of the appellants under Order XVII, Rule 3, C.P.C. Record has been perused and the arguments have been heard.
2. The evidence of the appellant was closed by the learned trial Court through order dated 24-10- 1967. The appellant filed a revision petition which was contested by the respondents. The said revision petition (C.R.235/68) was dismissed by Mr. Justice A.R.Sheikh, as he then was, vide order dated 17-11-1972. The learned counsel for the appellant has argued that in spite of the dismissal of the revision petition the same point can once again be raised and decided in this appeal. We need not go into this legal question because the factual position is very clear from the record and shows that the appellant was pursuing the case not only without due care and caution but also carelessly and negligently. The appellant was proceeded against ex parte twice, once on 17-10-1965 and then on 2-3-1967. Both the times ex parte proceedings were set aside against him but naturally the same resulted in the lingering on of the case and delay in its disposal. After the ex parte proceedings were set aside for the first time the case was fixed for evidence of the appellant- defendant for 10-5-1967 and it was ordered that the appellant would be responsible for producing his evidence. But on the date so fixed no one appeared for the appellant and he was proceeded against ex parte on that date. This means that not only the learned counsel for the appellant was absent on that day but his evidence also was not present on that date. Keeping in view the previous conduct and delaying tactics of the appellant, while setting aside the ex parte proceedings on 15-6-1967, the learned trial Court laid the responsibility of producing the evidence on the appellant so much so that it was made clear that if any witness was summoned the responsibility of his service will also lie on the appellant. It was further ordered that the appellant could obtain Dasti summons. Therefore, the order clearly meant that this was the last adjournment.
However, when the case was taken up on 24-10-1967 the learned counsel for the appellant did not appear himself and in his place Ch. Meraj Din Advocate appeared for him and requested for an adjournment on the ground that Sh. Muhammad Ayub, Advocate the original counsel for the appellant, had gone to Montgomery. But he also made it known to the Court that no evidence of the defendant-appellant was present on that date. Therefore, the adjournment was not sought on the ground of absence of the learned counsel but was also prayed on the ground that no evidence of the defendant-appellant was available on that day. No evidence had been summoned through the Court and even costs awarded for the setting aside of the ex parte proceedings were not paid.
This would mean that the appellant failed to produce the evidence even on that date i.e., 24-10- 1967 negligently and without any cogent reason. The learned counsel for the appellant has referred to Ellammal and others v. A.R. Karuppan Chetti AIR 1936 Mad. 625 and has argued that in the circumstances of the case the evidence could not be closed because the adjournment from 10-5- 1967 to 24-10-1967 had not been granted at the request of the appellant. He was confronted with sub-rule (3) of Rule 1 of Order XVII, C.P.C. Which had been added by the Lahore High Court, Lahore to argue whether the evidence of the appellant could be closed under that rule or not. However, he did not dispute that the said sub-rule could apply but argued that as the learned trial Court had specifically mentioned that the evidence is being closed under Order XVII, rule 3, C.P.C. It cannot be taken that it could be closed under Order XVII, Rule 1(3), C.P.C. There can be no dispute that in view of sub-rule (3) ibid the case of Ellammal and others (supra) will not apply because the said sub- rule is specifically applicable in the Punjab. Under sub-rule (3) ibid the Court is competent to close the evidence of a party if it is of the opinion that no adjournment should be granted to a party who has defaulted in production of evidence. The conduct of the appellant in pursuing the case has been detailed above to show that they had been careless and negligent in pursuing the same.
Similarly the order dated 10-5-1967 through which the case was adjourned for evidence for 24-10- 1967 has also been analysed. It had been made clear in that order that it was the responsibility of the appellant to produce evidence and it was for him to obtain the summons Dasti if he wanted to summon any witness through the Court and as such the said order meant that this was the last adjournment. Keeping in view the said conduct of the appellant and the said conditions in the order dated 10-5-1967 it was incumbent upon the appellant to produce evidence. As stated above not only the learned counsel for the appellant did not care to be present but also no evidence of the appellant had been summoned and none was present on 24-10-1967. Therefore, the appellant was not entitled to any further adjournment and his evidence could rightly be closed under sub- rule (3) of rule 1 of Order XVII, C.P.C. The citation of Order XVII, rule 3, C.P.C. In the order dated 24-10- 1967 does not make any difference because the substance of the said Order shows that the learned trial Court meant to close the evidence under Order XVII, rule 1(3), C.P.C. Accordingly we hold that the evidence of the appellant was rightly closed.
3. The learned counsel for the appellant has also, but half-heartedly, argued that the civil Court had no jurisdiction to try the case because the land in dispute was agricultural land and the case, therefore, was triable by the Revenue Authorities. The argument has no force first because there exists no relationship of landlord and tenant between the parties and secondly because the land in dispute was not an agricultural land within the meaning of law. It was not being used for agriculture or for any purpose and subservient thereto. The case of the appellant himself is that the land was being used for dumping rubbish and B garbage etc. And not for any other purpose.
Therefore, the case was not triable by a revenue officer or a revenue Court. The case related simply to the recovery of compensation/mesne profits for use and occupation of the land and the same was, therefore, triable exclusively by a civil Court.
4. The learned counsel for the appellant also raised a plea that the learned trial Court could not award any compensation for a period beyond 31-12-1964 because the respondents had claimed compensation/ mesne profits only up to that date. A perusal of the plaint will show that the respondents had prayed not only for compensation/mesne profits for a period beyond 31-12-1967 but also for the future period up to the decision of the case. The learned trial Court was, therefore, justified in allowing the compensation/mesne profits upto the date of decision, i.e. 30-5-1974. He ordered for the payment of court-fee in respect of compensation awarded beyond 31-12-1964 and that was paid by the respondents. Therefore, this objection is ruled out.
5. The learned counsel for the appellant does not dispute the ownership over the suit land and there is enough evidence to prove the same. The real and crucial question in the case is about the rate of compensation/mesne profits to which the respondents are entitled. The appellant had taken the plea that the land was leased out to the previous owners at the rate of Rs.50 per Acre per year and the claim which was allowed by the learned trial Court was at the rate of Rs.50 per Kanal per month. It may be mentioned that the compensation up to the decision of the suit thus, amounted to Rs.4,92,815. No evidence was produced by the appellant to establish that the property in dispute had been leased out to the previous owners at the rate of Rs.50 per Acre per year. There was no privy of contract between the plaintiff and the respondents. It is not known as to when and how long ago the appellant took the land on lease from the previous owners. There is nothing on record to show that the rate of Rs.50 per Acre per year was settled for ever or for any long period.
Therefore, the respondents were not bound by the rate of Rs.50 per Acre per annum even if that had been agreed to between the previous owners and the appellant. In any case that rate could not apply for all times to come and could not apply in the case of the respondents whom the respondents refused to recognise even as owners and to whom they did not pay a single penny for so long a period. The land was purchased by the respondents for a total sum of Rs.42,458. The learned trial Court determined the compensation/mesne profits at Rs.50 per Kanal per month, i.e.Rs.39,630 per year. Keeping in view the said total sale price the rate of Rs.39,630 per annum is obviously very high because it comes to nearly 100. Therefore, this so high a rate cannot be approved. A formula for determining fair compensation will have to be evolved. It will be useful to seek guidance from the method of asessment of compensation given in subsection (2) of section 6 of the Requisitioning of Immovable Property Act, 1956. The said provision of law provides that a compensation from 8 to 10 per centum per annum of the initial cost would be a fair compensation.
Therefore, the formula given therein is equitable and we will prefer to adopt the same. The total investment of the respondents was Rs.42,458. The compensation from 1-1-1962 to 30-5-1974 (12 years and 5 months) will come to Rs.47,446.71 at the rate of Rs.9 and will come to Rs.52,718.75 at 10.
A compensation awarded in between these figures will be fair enough for both the parties.
Therefore, we determine the compensation for the said period at a round figure of Rs.50,000. The finding of the learned trial Court on issue No.4 is, therefore, modified and it is held that the respondents are entitled to compensation/ mesne profits amounting to Rs.50,000.
6. The appeal is partly accepted. The impugned decree is modified and instead of decree for Rs.4,92,815 a decree for recovery of Rs.50,000 is passed in favour of the respondents and against the appellant. The appellant shall also bear the costs throughout.
7. If the respondents have realised the total decretal amount the same shall be recovered from the respondents and paid to the appellants by the learned trial Court.