' This second appeal is directed against the judgment and decree dated 17-11-1991 passed by the learned Additional ' ' District Judge, Toba Tek Singh whereby he confirmed the judgment and decree dated 1-4-1991 passed by Civil Judge, Gojra decreeing the suit of the plaintiff/respondent filed against the defendants/appellants.
2. Briefly stated the facts are that Malik Barkhurdar predecessor-in-interest of defendants/appellants was owner of suit land measuring 85 Kanals, Marlas as well as some other land. He entered into an agreement through his son Malik Ijaz Hussat (his General Attorney) for the sale of said land and received a sum of Rs,10,000 as earnest money and handed over the possession to them. During the year 1972, the defendants/appellants started interfering in their possession as such the plaintiff/ respondents were constrained to file a suit for declaration with consequential relief against Malik Barkhurdar through his attorney Malik Ijaz Hussain. During the pendency of that suit an agreement was arrived at between the parties on 7-7-1975. According to that agreement the previous deal was amended to the extent that except the suit land measuring 85 Kanals 7 Marlas, the possession of other land was handed over to Malik Barkhurdar who further agreed to sell the suit land for Rs,90,000 and received a sum of Rs,65,000 in addition to previous payment of Rs,10,000. In this way he admitted the receipt of Rs,75,000. It was further agreed that plaintiffs shall remain in possession of the suit land till finalisation of litigation regarding land pending with the Land Reforms Commission as well as in the High Court. It was further aged that thereafter, sale-deed shall be executed in favour of plaintiffs/respondents after accepting the remaining amount of Rs,15,000. They alleged that litigation kept on pending till 1986, when Malik Barkhurdar died and his son Malik Ijaz Hussain defendant/appellant No,1 alienated land through an alleged will-deed in favour of his sons vide Mutation No, 166, dated 12-11-1977. The defendants/appellants then started compelling plaintiffs/respondents for giving them share of produce. This demand of defendants/ appellants compelled them to file a suit for declaration with consequential relief which was resisted by the defendants/ appellants. The said suit was dismissed on 11-61984. On appeal, the said judgment and decree was set aside and consequently, Mutation No,166, dated 12-11-1977 was set aside. After the decision of Land Reforms Commission the plaintiffs/ respondents requested the defendants/appellants to execute sale-deed in their favour after acceptance of Rs,15,000 but they refused to accede to their request, hence they filed a suit for specific performance of the agreement dated 7-7-1975. The defendants/appellants contested the suit, filed the written statement wherein they asserted that the suit land was exempted by Land Reforms Commission on 23-12-1979 and the suit having been filed on 7-10-1987 was hopelessly barred by time. They further asserted that Malik Barkhurdar had only received Rs,10,000 and the entire remaining sale price was outstanding against the plaintiffs/respondents. From the divergent pleadings of the parties the trial Court framed the following issues:--
(1) Whether the plaintiff has no cause of action to file this suit? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction if so what is correct valuation? OPD
(4) Whether the suit is time-barred? OPD
(5) Whether the plaintiff is entitled to get decree for specific performance of contract on the basis of agreement dated 7-7-1975? OPP
(6) Relief.
3. In support of their contentions plaintiffs/respondents examined Muhammad .Ashraf one of the plaintiffs and after producing documents Exh.P-1 to Exh.P-12 closed their evidence. In rebuttal defendants/ appellants did not produce any evidence as such their evidence was closed on 17-3- 1991. However, their learned counsel produced copy of Khasra Girdawari through his own statement which is the only document available on record on their behalf.
4. After going through the evidence produced by the parties the trial Court decreed the suit vide judgment and decree dated 1-4-1991. The defendants/appellants felt aggrieved of the said judgment and decree and filed an appeal which was dismissed vide judgment and decree dated 17-11-1991. Hence the St and Appeal,.
5. Arguments have been heard and record perused.
6. It is submitted by the learned counsel for the defendants/appellants that issues were framed in the instant suit on 26-3-1988 and thereafter, the plaintiffs/respondents were granted various opportunities to adduce evidence and finally they closed their evidence on 9-9-1989. Thereafter the suit was adjourned to 7-11-1989 for recording defendants/appellants' evidence, that from 7-1- 1989 to 17-3-1991 on various dates their evidence was present but the trial Court did not record the same on one pretext or the other and finally closed their evidence on 17-3-1991. He argued that even if Malik Ijaz Hussain defendant/appellant No,1 failed to attend the Court and produce evidence yet their evidence could not be closed as defendants/appellants Nos.4 to 6 were minors, that the trial Court should have removed their guardian i,e, Malik Ijaz and appointed some other person to watch their interest. He, thus, submitted that order dated 17-3-1991 closing their evidence is illegal and consequently the impugned orders passed by the Courts are not sustainable in the eyes of law.
7. Conversely the impugned judgments and decrees of the Courts below have been supported by the learned counsel for the plaintiffs/respondents.
8. The first point which requires determination is if trial Court was justified in closing evidence of defendants/appellants on 17-3-1991 or not? There is no doubt that in the instant suit issues were framed on 26-3-1988 and matter had been adjourning for recording evidence of the plaintiffs/ respondents, who closed their evidence on 9-9-1989. Thereafter, the matter was adjourned to 7-11- 1989, 15-1-1990, 26-2-1990, 2-4-1990, 26-5-1990, 22-7-1990, 28-7-1990, 1-10-1990, 9-12-1990, 7-1-1- 991 for recording evidence of defendants/ appellants. On 7-1-1991 the defendants/ appellants were granted last opportunity and the suit was adjourned to 11-2-1991. On the same date as the Presiding Officer was on leave so the matter was adjourned to 24-2-1991. Even on 24-2-1991 defendants/ appellants failed to 'produce evidence and they were again granted last opportunity and the matter was adjourned to 17-3-1991. Or 17-3-1991 the defendants/appellants again failed as such their evidence was closed and the matter was adjourned to 31-3-1991 for final arguments. On 31-3-1991 arguments were heard and thereafter, the matter was finally disposed of on 1-4-1991. The resume of facts stated above clearly shows that trial Court was very liberal in granting one opportunity after the other to the defendants/ appellants but they failed to adduce any evidence.
The Court under the circumstances referred above was not left with any alternative but to close evidence of defendants/appellants .
9. The next point agitated by the learned counsel for the defendants/appellants is that even if evidence had to be closed under Order 17, Rule 3, C.P.C. It could be closed to the extent of Malik Ijaz Hussain and it could not be closed to the extent of minor defendants/appellants Nos.4 to 6. This contention of the learned counsel for the defendants/appellants is also devoid of any force. A perusal of the record shows that Malik Ijaz Hussain has filed Wakalatnama on his own behalf as well as on behalf of minor defendants/appellants being their guardian. He also filed written statement on his own behalf as well as on behalf of the minors being their guardian and contested the suit on their behalf. The mere fact that trial Court closed evidence of defendants on 17-3-1991 and did not pass any explicit order regarding closing evidence of the other defendants/ appellants does not vitiate the proceedings unless and until interest of the minors is shown to have been prejudiced. In the instant case Malik Barkhurdar predecessor-in-interest of defendants/appellants received a sum of Rs,75,000 and agreed to execute a sale-deed in their favour after the finalisation of dispute of the land pending with Land Reforms Commission as well as in the High Court. It seems that as the defendants appellants had received a major portion of the consideration stipulated in the agreement, so they were lingering on the matter on one pretext or the other to extract some more amount from the plaintiffs/respondents. This attitude/conduct of the defendants/appellants is highly deplorable. The trial Court, accordingly was right in closing their evidence vide order dated 17-3-1991 and decreeing the suit vide judgment and decree dated 1-4-1991.
10. The upshot of above discussion is that trial Court had rightly decreed the suit on the basis of evidence adduced by the plaintiffs/respondents which stood un rebutted and consequently the Court of first appeal was also justified in dismissing the appeal and maintaining the judgment and decree of the trial Court. There is no force in this second appeal and the same is hereby dismissed.