2007 PLP 2827 (YLR)

SH. AZMAT SAEED, J.

This is an application seeking restoration of the appeal which has been dismissed in default on 6-4-2006. The learned counsel for the respondents has no objection to the acceptance of this application and restoration of appeal provided the main appeal is heard today. Learned counsel for the appellant accepts the offer of the learned counsel for the respondents. Consequently, C.M. No.1260/C of 2006 is accepted, the order, dated 6-4-2006 is recalled and the appeal is restored to, its original number. Main Appeal

2. This appeal is directed against the appellate judgment and decree dated 8-9-2004 whereby the appeal filed by the present appellant against the judgment and decree dated 24-4-2004 was dismissed.

3. Brief facts necessary for the adjudication of the lis at hand are that the appellant filed a suit for specific performance against the respondents. The said suit was dismissed under Order XVII, rule 3 of the C.P.C. as the appellant/ plaintiff had failed to produced. evidence. Aggrieved by the aforesaid dismissal of the suit vide judgment and decree, dated 24-4-2004 the appellant filed an appeal. During the course of hearing the appellant was directed to affix the requisite court-fee on the appeal which was not done. Consequently, the appeal was dismissed vide the impugned appellate judgment and decree, dated 8-9-2004.

4. The learned counsel for the parties have been heard and the record perused.

5. It is not disputed by the learned counsel for the appellant that in the first appeal court-fee of Rs.15,000 was required to be affixed. It is also not disputed by the learned counsel for the appellant that opportunity for making up the deficiency in the court-fee was granted to the appellant which was not availed of and the deficiency was not made up. In the above circumstances that appeal was dismissed. The said appellate judgment and decree is in accordance with law. NO legal infirmity therein has been pointed out so as to persuade this Court to interfere therewith.

6. I have also examined the judgment and decree of the trial Court. It appears that after the filing of the written statement issues were framed on 24-2-2003 and the case was adjourned for evidence of the plaintiff for 22-3-2003. No evidence was produced on the said date and on the succeeding several dates by the appellant/ plaintiff despite the fact that adjournments had been granted at his request and subject to payment of costs. On 7-3-2003 the statement of the plaintiff was eventually recorded. However, he was not made available for cross-examination on the next several consecutive dates of hearing on the ground that the counsel was not available. Such adjournments were also granted at the request of the appellant/plaintiff including some subject to payment of costs. Eventually in the above circumstances the right to produce evidence of the plaintiff was closed under Order XVII, rule 3 of the C.P.C. and the suit was dismissed for lack of evidence by the trial Court. In all, it appears, that about 18/19 adjournments were granted to the appellant/plaintiff to produce evidence. However, such evidence was not produced and' it is only thereafter that right to produce evidence was closed and suit dismissed. It is clear and obvious that not only the provisions of Order XVII, rule 3 of the C.P.C. were clearly applicable to the case but also that the appellant/ plaintiff had been deliberately not producing his evidence and had repeatedly sought adjournments in this behalf which amounted to an abuse of the process of the Court. And upon dismissal of his suit he filed an appeal on which requisite court-fee was not affixed. An opportunity in this behalf was granted by the First Appellate Court, yet the deficiency in court-fee was not made up. The impugned judgment and decree of the trial Court as well as the First Appellate Court are in accordance with I law. No illegality therein has been pointed out by the learned counsel for the appellant at the bar. This appeal is totally devoid of any merit and is dismissed with costs. F.B./M-233/L Appeal dismissed.