1997 PLP 924 (SCMR)

MUHAMMAD MUNIR KHAN, J.‑‑‑This petition for leave to appeal directed against the order dated 9‑10‑1994 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in a Revision Petition, arises from the facts that on 23‑5‑1990 Sufi Ghulam Mohyuddin petitioner and thirteen others, filed suit for declaration that they were owner in occupation of Plot No.B‑I‑2359, Mauza Pira Ghaib, Teshsil and District Jhelum against Khushi Muhammad and others respondents, in the Court of Civil Judge, Jhelum. The suit was resisted. As many as eight issues were framed and the case was adjourned for the evidence of the plaintiff/petitioner for 25‑6‑1991. On 25‑6‑1991, the plaintiffs failed to produce evidence and on his request the case was adjourned to 29‑9‑1991 for their evidence on which date they again failed to produce evidence and the case was adjourned to 10‑11‑1991. Thereafter, the case was adjourned for several dates for the evidence of the petitioner/plaintiff but he failed to produce evidence. Lastly, the case was adjourned to 17‑2‑1992 for his evidence. He again failed to produce evidence. Instead he filed applications under Order I, Rule 10, C.P.C. and under Order VI, Rule 17, C.P.C. for the amendment of the plaint. The learned Civil Judge vide his order dated 17‑2‑1992 closed his evidence under Order XVII, Rule 3, C.P.C., and dismissed the suit. The petitioner filed an appeal against the judgment and decree of the learned Civil Judge which was dismissed by the Additional District Judge on 8‑5‑1994. Feeling aggrieved thereby, he filed revision . in the Lahore High Court, Rawalpindi Bench, Rawalpindi which was dismissed on 9‑10‑1994. Hence this petition for leave to appeal.

2. Before us, learned‑counsel for the petitioner has argued that in view of the fact that on 17‑2‑1992 the petitioner/plaintiff had applied for the amendment of the plaint and also filed an application under Order I, Rule 10, C.P.C. for the addition of the parties, the trial Court was not justified in closing the evidence under Order XVII, Rule 3, C.P.C., and dismissing the suit without first having decided those applications.

3. We have considered the submissions made by the learned counsel. We do not agree with him. We find that the contentions raised by him before us were not raised before the High Court. Admittedly, the petitioner had failed to produce evidence on 17‑2‑1992 although the case was adjourned for six times to enable him to produce evidence. It seems to us that on 17‑2‑1992, the two applications were given mala fide to get adjournment. Since the plaintiff/petitioner had failed to produce evidence on 17‑2‑1992 and he himself was not present in Court, the trial Court had no option but to close his evidence and dismiss the suit. The judgments/orders of the Courts below do not suffer from legal infirmity. We do not see any valid reason to interfere with the concurrent findings of the three Courts below. Accordingly, leave to appeal is refused and the petition is dismissed. A.A./G‑534/S Leave refused.