1986 PLP 658 (CLC)

‑‑‑O.XVII, r.3‑‑Failure to produce evidence‑‑Dismissal of suit‑ Petitioner failed to produce evidence in spite of large number of adjournments having been granted to him‑‑Order sheet did not show presence of petitioner or his witness in trial Court as was alleged by petitioner‑‑No illegality had been alleged nor competency of trial Court to take action under O.XVII, r.3, Civil Procedure Code, 1908 had been disputed‑ Findings of two Courts below being concurrent, no exception, held, could be taken to such findings in circumstances. Raja Sher Muhammad Khan for Applicant. This Revision Application under section 115, C.P.C. is filed against the impugned judgment, dated 20‑5‑1985 of learned Vth Additional District and Sessions Judge, Karachi, whereby, appeal filed against dismissal of suit has been dismissed. Briefly stated the relevant facts are that applicant before me filed a suit for Declaration and Injunction against Dawood and Yousuf who are sons of his brother Usman and Municipal Commissioner, Karachi. Applicant claimed in the suit that his father Budha Mianji had transferred ownership of two rooms and open space by gift agreement, dated 28‑12‑1976. Respondents Nos. 1 and 2 claimed the ownership of whole plot and admitted possession of the applicant of two rooms but not as owner. During the pendency of the suit issues were framed and the case was. adjourned to 16‑1‑1980 for evidence. Applicant failed to produce the evidence and ultimately suit was disposed of by the trial Court under Order XVII, rule 3, C.P.C., vide judgment, dated 13‑1‑1981. Applicant filed appeal which was also dismissed. Order XV II , rule 3, C . P . C . clearly provides that where any party to a suit to whom time has been granted to produce the evidence, has failed to do so the Court may proceed to decide the suit forthwith. Under this provision the trial Court acted and disposed of .the suit on the basis of material which was available on the record. The grievance of the applicant is that he was not heard and did not get a sufficient opportunity to produce the evidence. Certified copy of the case diary from the record of the trial Court has been produced. Perusal of case diary shows that on 30‑9‑1980 the case was adjourned to 16‑10‑1980 for evidence. On that day, the case was adjourned to 2‑11‑1980 and on that day, the evidence of Budha Mianji was recorded who supported claim of respondents 1 and 2 and not of applicant and then further proceedings were adjourned for recording of evidence on 25‑11‑1980. On that day, application for adjournment was filed by the counsel of applicant which was granted and the case was adjourned to 21‑12‑1980 for evidence. On this date also application for' adjournment was filed which was granted and proceedings were adjourned to 13‑1‑1981 for evidence. On this date, applicant and his counsel were called absent. Counsel for defendant was present. Clerk of the counsel of applicant filed application for adjournment which was refused and judgment was announced under Order XVII, rule 3, C.P.C., and in consequence the suit was dismissed. Contention of the applicant that he was present and his witnesses were also present but on that day, he was not allowed by the trial Court to lead his evidence is not borne out from the record. Order sheet of 13‑1‑1981 does not show that applicant was present or his witnesses were present. If they were present, their presence would have been reflected in the order sheet of that day. First Appellate Court has written a very detailed order in which this contention has been dealt with adequately.. There is no dispute about the fact that trial Court was competent to take action under Order XVII, rule 3, C.P.C., no illegality has been alleged. Findings of the two Courts below are concurrent and no exception can be taken to them. No ground for interference is made 'out in revision which is hereby dismissed in limine. H. B. T. Revision dismissed.