ABDUR REHMAN KHAN, J.--In this revision, the petitioners have impugned the correctness of `the judgment and decree of the learned District Judge dated 1-12-1986 whereby the judgment delivered by the learned Trial Judge on 21-10-1985, was confirmed.
2. Ghulam Muhammad plaintiff/respondent No.l sued the present petitioners and the other respondents for a declaration that by Mutation No.139 attested on 30-1-1906 the previous khasra Nos. 745, 747, then measuring 68 kanals 6 marlas and now corresponding to new Khasra Nos.2377, 2401/1, 2398, 2393, 2397, 2376, 2402, 24(14, 2400, 2401, 2394, 2392, 4411 and 2375 measuring 70 kanals 17 marlas were mortgaged by Feroz, predecessor of defendants 14 to 34 in favour of Mir Gul Shah father of the plaintiff and Haqnawaz predecessor of defendants 6 to 13 and then subsequently in view of the High Court judgment arising out of a suit instituted by defendants 14 to 34 for redemption of mortgage half of the area was redeemed in favour of the said defendants while the other -half was given to the plaintiff and defendants 6 to 13 as owners. In this back ground it was, therefore, prayed that Mutation No.94 dated 30-1-1973. Of the entire property in favour of defendants 14 to 34 is against the said judgment of the High Court and would not affect his rights.
Similarly, the validity of Mutation No.577 attested on 20-3-1974 and the decrees in Suits No.382 and 383 dated 26-5-1976 were also challenged being violative of the interest of the plaintiff. As a consequential relief, it was requested that the High Court judgment, referred to above, should be given effect in the Revenue record and the present entries brought about by the said mutations and decrees be corrected so as to render it in conformity with the High Court judgment. In the written statement the allegations in the plaint on factual side were refuted and on legal side the bar of limitation, res judicata, and incompetency of the suit were also pleaded.
3. In the trial Court the plaintiff concluded his evidence on 21-4-1985 and the defendants were asked to produce evidence on the next date i.e. 18-6-1985. On this date the Presiding Officer was on leave and the Reader of the Court fixed 22-9-1985 as next date m the case. But on 22-9-1985 the defendants had not brought their evidence and on the request of their counsel they were afforded last chance for this purpose and it was observed in the order-sheet that in case of default in this respect the provision of Order 17 Rule 3 C.P.C., would be resorted to and 21-10-1985 was fixed as next date in the case. At this date, the plaintiff and his counsel were present but none appeared on the side of the defendants- nor their evidence was in attendance. The learned trial Judge, therefore, proceeded under Order 17 Rule 3 and decreed the suit of the .Plaintiff on the basis of the evidence brought on the record by him. This order was challenged in appeal but with no success.
4. Mr. Muhammad Shah Badshah, Advocate, as counsel for the petitioners contended that Order 17, Rule 3, C.P.C. Was not applicable, firstly, because no last opportunity was given to the defendants to produce his evidence and secondly, on account of absence of the defendants on the date fixed, and that the learned trial Judge at the most could only proceed under Order 17 Rule 2, C.P.C. He also criticised the judgment as derogatory of Order 20 Rule 5 of Civil Procedure Code and further submitted that the suit being time-barred was not maintainable and was also not competent on account of the bar as contained in section 12 (2), C.P.C. He was of the view that the effect of Mutations Nos. 793 and 794 has not been considered and, therefore, the impugned judgment was not legally justified. In support of these points, the following decisions were relied on:-
1. PLD 1967 Lahore 154, 2.PLD 1975 Lahore 384, 3.AIR 1927 Madras 109 and '
4.AIR 1924 Lahore 404.
5. Mr. Abdul Aziz Khan Kundi, Advocate, representing the respondents supported the judgment and while refuting the objections raised by the learned counsel for the petitioners also based reliance for his view on the following authorities:-
1. 1985 SCMR 1103 and 1223,
2. PLD 1985 Peshawar 91 and
3. CLC 1980 page 3080.
6. 1 considered these arguments and studied the record.
7. From the perusal of the High Court judgment dated 5-10-1972 in the previous litigation which is based on compromise it is manifest that half of the property in suit was given to the plaintiff and defendants 6 to 13 while the ownership of defendants 14 to 34 was admitted on the remaining half.
But it is curious to note that Mutation No.94 dated 30-1-1973 although attested on the basis of the said judgment has been sanctioned only in the name of Muhammad Jan, defendant No.14, regarding the entire suit property. So naturally this mutation having been attested against the judgment of the High Court would adversely affect the rights of the plaintiff and defendants 6 to 13.
Moreover, order-sheet dated 22-9-1985 of the original Court will reveal that the evidence of the defendants was not present on that date and they requested for further time to produce evidence and the Court granted them his adjournment at their instance with a specific direction in the order sheet that this would be the last opportunity failing which Order 17 Rule 3, C.P.C. Would be applied.
This order sheet reads as under:--
8. But on 21-10-1985, the defendants not only failed to produce evidence but also absented themselves. It is also unique to note that at no stage either in the trial Court or in the grounds of appeal or in the arguments before the Appellate Court and similarly neither in the grounds of revision or during the arguments in this Court any explanation leaving aside rational and reasonable explanation was offered for default in appearance or producing evidence. The learned trial Court was, therefore, perfectly justified in applying Order 17 Rule 3. It is redundant and cannot be applied although the facts and circumstances may justify its application. In absence of any explanation either for default or producing evidence, there is no basis for holding that Order 17 Rule 3 of the C.P.C. Has wrongly been invoked. In this case, the High Court judgment in the previous litigation, Mutation No.94 attested on the basis of this judgment and the other relevant record along with evidence of the plaintiff and the Patwari was sufficient to enable the trial Judge to decide the case. The relief prayed for in the plaint could be adjudged on the strength of this evidence and the learned trial Judge in doing so has committed no illegality and the objection of the learned counsel on this count is, therefore, misplaced. The authorities cited by the learned counsel for the petitioners have hardly any relevance to the facts of this case as they proceed on their own facts and are quite distinguishable. I see no reason to interfere with the concurrent finding of the two Courts and, therefore, dismiss this revision petition but with no order as to costs.