2013 PLP 253 (YLR)

AMIN-UD-DIN KHAN, J.

Through this appeal the appellants have challenged the order dated 21-10-2004 passed by the learned Additional District Judge, Bahawalpur whereby he has remanded the case to the learned trial Court with a direction to record cross-examination on P.W.1 to P.W.5 and to obtain complete record including Parrat Sarkar of jamabandi and then to decide the case afresh in accordance with law.

2. This appeal pertains to the year 2005 and is still in a motion stage. Once on 10-4-2009 it was dismissed for non-prosecution but on 24-4-2009 it was restored. On 9-3-2010 no one appeared and the case was adjourned. On 9-6-2010 again the case was adjourned today no one appeared on behalf of the appellant. However, name of learned counsel for the appellant has correctly been reflected in the cause list. Learned counsel for the respondents is present. With the assistance of learned counsel for the respondents and after perusing the record, I am going to decide this appeal ex parte.

3. The predecessors of the appellants filed a suit for specific performance against Mst. Reshman and others with regard to the suit property measuring 51 kanals, 11 marlas. The defendants took the plea in the suit that the agreement has been cancelled with the consent of the parties and plaintiffs have taken back the earnest money but ultimately the suit was decreed on 18-7-1985 by the learned Civil Judge 1st Class, Hasilpur. When the above mentioned decree for specific performance came in the knowledge of Muhammad Yamin the predecessor in interest of respondents Nos.1-A to 1-C, on 10-10-1985 he filed an application under section 12(2), C.P.C. This application was ultimately accepted by the learned Civil Judge, 1st Class Khairpur Tamewali vide order dated 12-7-1994 and the suit was restored. It was ordered that after impleading the applicant of application under section 12 (2) CPC as defendants, the suit be decided afresh. Amended plaint was filed in which respondents were impleaded as defendants Nos.6 to

10. On 21-5-1995 third time the issues were framed. On 7-2-1998 learned counsel for the plaintiffs has made a statement before the court that he relies upon the evidence recorded earlier in the suit and on 5-7-2000 he produced some further documentary evidence but did not produce the witnesses to face cross-examination by the counsel for defendants Nos.6 to 10 who were added as defendants after recording of statements of these witnesses. On 27-9-2000 Muhammad Suleman was examined as DW-1 whereas Muhammad Yamin one of the defendants appeared as DW-2. The learned Civil Judge Ist Class, Khairpur Tamewali once again decreed the suit vide judgment and decree dated 3-10-2000. Aggrieved by the said judgment, Muhammad Yamin filed an appeal before the learned District Judge, Bahawalpur. In the appeal the appellants also filed an application for additional evidence to permit him to produce copy of parrat sarkar of jamabandi for able assistance of the court. This appeal was allowed and the case was remanded back to the learned trial Court with the above mentioned directions. It is clearly visible on the file that when the suit was restored after acceptance of application under section 12(2), C.P.C. the plaintiff has not produced the witnesses. His counsel has made a statement that he relies upon the statements of the witnesses already recorded in the court. It was incumbent upon the court and also on the plaintiffs to produce witnesses in order to face the cross-examination on behalf of learned counsel for newly added defendants. The other point in issue in the suit was that Ex.P 1 jamabandi for the years 1973-1974 has been produced. This jamabandi was issued by the Patwari and not from the record room of Qanungo office. In, the last column there is an endorsement that vide order dated 19-3-1975 this land has been confirmed in the name of Bakhshaya son of Bahadar. The case of the defendants is that neither the order dated 19-3-1975 has been produced before the court nor there is such endorsement in the jamabandi in the office of sadder Qanungo Branch. He further contends that the land in dispute was confirmed in the name of Mst. Janat through RL-II, the copy of which was produced as Exh.D-5 and this property was sold on 16-4-1978 by Mst. Janat in favour of contesting respondents/defendants through registered sale-deed as Exh.D

3. I am of the considered view that appellant in the grounds of appeal has failed to point out any illegality or infirmity in the impugned remand order passed by the learned Additional District Judge, Bahawalpur. Even otherwise this order is absolutely in consonance with record of this case.

4. For what has been discussed above, I see no force in this F.A.O. which is hereby dismissed leaving the parties to bear their own costs. KMZ/R-23/L Appeal dismissed.