' The respondent No,1 filed a suit claiming a declaration that the registered sale-deed regarding House No,61-A, Ahmed Block, New Garden Town, Lahore is a benami transaction and that the real owner was the late father of the parties. The respondents Nos.3 and 4 filed a written statement conceding the claim of the respondent No,
1. The petitioner and respondent No,2 contested the suit.
Issues in the suit were framed and the learned trial Court commenced recording evidence.
Evidence of plaintiff/respondent No,1 was concluded on 8-12-1998 and the case was adjourned to 3-2-1999 for recording documentary evidence of plaintiff and evidence of respondents Nos.3 and
4. On the said date the evidence was not produced rather an application was filed by the respondents Nos.3 and 4 that the petitioner and respondent No,2 be called upon to lead their evidence first and, thereafter, the respondents Nos.3 and 4 will produce their evidence. This application was contested by the petitioner and respondent No,2. Vide the impugned order, dated 25-2-1999 the learned 'trial Court proceeded to allow this application on the sole ground that the laintiff/respondent No,1 does not object to the said application consequently he directed petitioner and respondent No,2 to produce their evidence on 21-4-1999. Feeling aggrieved the present civil revision has been filed. In response to the notice issued by this Court after admitting the civil revision M/s. Taqi Ahmad Khan and Noor-ul-Hassan, Advocates put in appearance and sought adjournment that they will be filing Power of Attorney. The request was made in the first instance by Mr. Noor-ul-Hassan, Advocate on 8-6-1999 and then Mr. Taqi Ahmad Khan, Advocate on 7-7-1999.
Today when the case was called Mr. Taqi Ahmad Khan appeared for the respondents and stated that he had not been able to procure Power of Attorney from respondents Nos.3 and 4. I find both the said learned counsel also are representing the said respondents in the learned trial Court.
2. Learned counsel for the petitioner contends that the impugned order violative of the provision of Order XVIII, Rule 2, C.P.C. Further contends that the consent of the respondent No,1 was meaningless as the application filed by the respondents Nos.3 and 4 was to affect the rights of the petitioner and respondent No,1 who had duly filed a written reply and prayed for the dismissal of the application. Mr. Taqi Ahmad Khan was unable to controvert the said contentions of the learned counsel for the petitioner.
3. As stated by me earlier the respondents Nos.3 and 4 had conceded the suit of the respondent No,1 and both were supporting him. In the said circumstances, in my opinion, it was both just and proper that the respondents Nos.3 and 4 should have been called upon to lead the evidence first in point of time and only thereafter the petitioner and respondent No,1 could be called upon to lead the evidence. I draw support from the judgment, relied upon by the learned counsel for the petitioner, in the case of "Shah Hiralal Himatlal and others, Applicants v. M.G. Pathak and others, Opponents" (AIR 1964 Gujarat 26) wherein it was observed as follows: "The order in which defendants lead evidence becomes important only when some of them support the case of the plaintiffs in whole or in part while the others do not. If all the defendants completely oppose the plaintiffs' case, then the question of order of leading evidence amongst the defendants is immaterial. It is only when the defendants are divided into two groups, one group consisting of the defendants supporting the plaintiffs' case in part and the other group consisting of defendants, who do not support the plaintiffs' case in any part that the question of order of leading evidence becomes important. In such cases among defendants the order of leading evidence should be as follows:---
(1) Those defendants who fully support the case of the plaintiff.
(2) Those defendants who partly support the case of the plaintiff.
(3) Those defendants who do not support the case of the plaintiff in any part.
' The said observations are based on the Rule, to the same effect, laid down in the case of "Nanak Chand, Petitioner v. Durga Pershad Brinja and others, Respondents" (AIR 1953 Punjab 102), to similar effect are the observations in the case of "Juma Bewa and others v. Sahadeb Rout and others" (AIR i9t7 Orissa 209). The Rule laid down in the afore-referred cases is in accordance with justice and equity and I do not find any reason not to follow the same. Accordingly the impugned order, dated 25-2-1999 is found to suffer from material irregularity in the exercise of its jurisdiction by the learned trial Court and the Civil Revision is accordingly allowed. The impugned order is set aside.
Result would be that the trial Court shall direct respondents Nos.3 and 4 to lead their evidence first and, thereafter, call upon petitioner and respondent No,1 to produce their evidence.
4. No orders as to costs.