SYED JAMSHED ALI, J---This appeal is directed against the judgment and decree dated 8-3-1995 whereby after closing the evidence of the appellant. the suit for specific performance filed by him was dismissed.
2. The case of the appellant was that the respondent owned land measuring 42 Kanals, 12 Marlas.
He agreed to sell the said land to the appellant on 18-7-1993 for a consideration of Rs,3.00.000. received a sum of Rs, 1.75.000 as earnest money while a sum of Rs,1.00.000 was received on 9-9- 1993 against a receipt. Thus. out of the sale consideration. an amount of Rs,25,000 only was outstanding. The suit was filed on 2-8-1994.
3. The respondent entered appearance, contested the suit. He denied execution of the agreement to sell, and the receipt dated 9.9-1993.
4. Perusal of record shows that the list of witnesses was filed on 10-10-1994 and the case was fixed for the evidence of the appellant on 23-11-1994. On the said date the learned Presiding Officer was on leave and therefore, the case was adjourned to 2-1-1995 for the evidence of the appellant. On 2- 1-1995 the appellant did, not produce any evidence and the case was adjourned to 30-1-1995 on payment of Rs,25 as costs. On 30-1-1995 the appellant again defaulted to produce evidence and the case Was adjourned to 8-3-1995 on payment of Rs,50 as costs which was the last opportunity for production of evidence by the appellant. On 8-3-1995 the appellant was not in attendance although his learned counsel was present before the Court. The learned counsel for the appellant requested for an adjournment. which was seriously opposed by the learned counsel for the respondent. Accordingly vide order dated 8-3-1995 the evidence of the: appellant was closed under Order XVII, rule.3, C,P.C. and vide separate judgment of even date the suit was dismissed.
5. The learned counsel for the appellant contends that the appellant was not allowed fair and proper opportunity to produce evidence. He maintains that on 8-3-1995 real brother of the appellant had died and therefore, evidence could not be produced. Reliance is being placed on Zahoor Ahmed v. Mehra through legal heirs and others (1999 SCM R 105) to contend that the learned Trial Court acted in the matter with haste and in arbitrary manner.
6. The learned counsel for the respondent disputes the assertion that the brother of the appellant had died on 8-3-1995. According to him, the appellant had been allowed adequate opportunity to produce evidence and on two occasions even costs were imposed, which were not paid.
7. The submissions made by the learned counsel for the parties have been considered.
8. The appellant was allowed three clear opportunities to produce his evidence. Vide order dated 30-1-1995 the appellant was allowed last opportunity to produce his evidence. Therefore. we are unable to agree with the contention of the learned counsel for the appellant that proper and fair opportunity was not allowed to the appellant to produce his evidence. The judgment in the case of Zahoor Ahmed (supra) relied upon by the learned counsel for the appellant has been considered.
In the said case, on account of the default of the defendant in the suit on the second opportunity for production of evidence his defence was closed. We have perused the record and find that on 8- 3-1995 the learned counsel for the appellant was in attendance and request for adjournment was made without disclosing any reason whatsoever as to why the evidence could not be produced on the said date. It has been urged in the memo. of appeal that appellant's brother had died on 8-3- 1995. but even his name has not been identified nor any prima facie evidence has been placed on the record in support of the said contention although the appellant could conveniently place on the record the death certificate in respect of his brother who had statedly died on 8-3-1995.
9. For what has been stated above we find no merit in this appeal which is dismissed.