' A.D. Nasim Qureshi, predecessor in-interest of the parties demised on 7-6-1979. Petitioner being one of his filed a suit for administration of property -left by the deceased. Later on respondents Nos.2 to 4 were transposed as plaintiffs. Anyhow, this matter was contested by respondents Nos.5 and 6; issues were framed and when the matter was fixed for the plaintiffs' evidence, their counsel namely Ch. Khurshid Ahmed, was arrested during the Martial Law Regime, consequently, plaintiffs made a request to the Court on 7-6-1986 for adjournment which was specifically not objected by the defendants. The case was adjourned 19-10-1986, on which date, the plaintiffs could not engage another counsel and Ch. Khurshid Ahmed, advocate was not yet released, thus on another request, the case was adjourned to 26-11-1986, when their evidence have been closed.
2. Learned counsel for the petitioner states that because of arrest of learned counsel for the petitioner, evidence could not be produced, no sufficient opportunity has not been given to the petitioner. The order, dated 26-11-1986, is harsh and the petitioners have been in fact dislodged on technical grounds.
3. Learned counsel for the respondents states that the dispute with regard to all the properties being common between the parties at Faisalabad has already been privately settled between them and the parties have taken their shares; only one property i,e, 75-C, Model Town, Lahore which is yet a. Joint property about which one of the respondent has filed a suit which is presently pending in the Court of Mr. Waqar-ul-Haq Butt, learned Civil Judge, Lahore.
' Therefore, in view of the above, the suit out of which the instant revision has arisen has become infructuous.
4. Be that as it may, the order, dated 26-11-1986 does not seem to be strictly in consonance with the provisions of Order XVII, rule 3, C.P.C. There were unavoidable circumstances under which the petitioner-plaintiffs could not produce her evidence, thus further time should have been granted to her to do the needful. The said order cannot be sustained and thus is liable to be set aside. The order of the Appellate Court disallowing the appeal of the petitioner is also not tenable in the eyes of law.
5. It may be clarified that in case the dispute between the parties with regard to the properties covered under the suit filed by the petitioner, as stated by learned counsel, if has been settled, obviously the suit has become infructuous, therefore, it is incumbent upon the trial Court to look into this aspect of the matter and to decide the case accordingly. As far as the property bearing No,75-C, Model Town, Lahore, is concerned, which is subject-matter of another litigation, before the Civil Court at Lahore, it is admitted by learned counsel for the petitioner that the suit can independently be proceeded and would not be deemed to be a part of the litigation out of which the present revision petition has arisen.
In the light of above, this revision petition is allowed, the impugned judgment and decree is set aside and the case is sent back to the trial Court to decide the case in accordance with law.