2003 PLP 1559 (MLD)

Munir Ahmad Khan for Petitioner. Khalid Ikram Khattana for Respondent. Date of hearing: 1st November, 2002. The petitioner has assailed the orders of both the Courts below by virtue of which the trial Court on 8-11-2001 proceeded to close his evidence under Order XVII, rule 3, C.P.C. and resultantly dismissed his suit and that of the Appellate Court dated 17-4-2002 whereby his appeal against the abovesaid judgment and decree of the trial Court was dismissed.

2. The facts in brief are that the present petitioner filed a suit for possession through pre-emption of the property detailed in the head note of the plaint with the averments that Mst. Dura Naz, the original owner of the property in order to prevent the plaintiff from exercising his pre emption right surreptiously and in a secret manner sold this property through a Mutation No.3261 dated 5-6-1998 for a consideration of Rs.1 lac and that the price was also got fictiously recorded as Rs.1,25,

000. It was alleged that the plaintiff on 18-8-1998 at about 8-00 a.m. was informed by one Imtiaz Ahmad about the sale of the property and he immediately made his Talb-e-Muwathibat followed by Talb-e- Ishhad on 20-8-1998. It was alleged that the plaintiff being owner of adjacent land and having common means of irrigation was having superior right of pre-emption. The defendant/respondent contested the suit and the trial Court did frame certain issues arising out of the pleading of the parties and fixed the case of the present petitioner/plaintiff for evidence. In spite of repeated opportunities given for the purpose of production of evidence, the plaintiff failed to produce his evidence and the trial Court closed his evidence on 8-11-2001 and dismissed the suit as abovesaid. The plaintiff filed the appeal before the First Appellate Court wherefrom it was also dismissed. The petitioner has assailed the order of both the Courts below through this revision petition.

3. In response to pre-admission notice Mr. Khalid Akram Khattana, Advocate did file his power of attorney and I have heard the learned counsel for the both the parties and have also gone through entire record with their assistance.

4. The only question requiring determination is that the providing of sufficient opportunities to the plaintiff for production of evidence. No doubt the record reveals that the case was adjourned for the purpose of production of the evidence on many occasions but the record is also available to the effect that on certain dates of hearing, the evidence of 'the plaintiff was available but could not be recorded due to non appearance of learned counsel for the defendant and on account of request for adjournment made by the learned counsel for the defendant. Although learned counsel for the respondent hag opposed this revision petition but during discussion has expressed satisfaction if one opportunity to produce evidence before the trial Court is given to the plaintiff as a final opportunity.

5. In this eventuality and giving due consideration to the effect that the plaintiff's evidence was available on certain dates of hearing when it could not be recorded on account of none of his fault and also keeping in mind that the law favours decision on merits and not on technicalities as such I allow this revision petition, set aside the impugned judgments and decrees of both the Courts below and remand the case to the trial Court p with the direction that only one and that too as the final opportunity to the plaintiff for production of his evidence be given on which date he will produce the entire evidence himself and in no event any further adjournment shall be given and the matter shall be disposed of afresh in accordance with law. The parties are directed to appear before the trial Court on 2-12-2002. In order to compensate the respondent for the delay caused in the matter, the petitioner is subjected to cost of Rs.2,

000. H.B.T./G-233/L Case remanded.