2006 PLP 1228 (MLD)

MUHAMMAD SAIR ALI, J.

The appellant Muhammad Tufail as plaintiff filed a suit for possession through specific performance of the suit-land on the basis of agreement to sell dated 13-6-1988 (Exh.P.3). It was also claimed by the appellant in his pleadings that the sale price settled by the respondent No. 1 for sale of land measuring 7 Kanals 2 Marlas was Rs.55,000 whereupon Rs.50,000 was paid as the earnest money and the execution and registration of the sale-deed was to be undertaken by the respondent No.1 on 15-10-1988 on receipt of balance amount. And that respondent No.1 owned only 6 Kanals and 16 Marlas while agreement to sell was for 7 Kanals 2 Marlas. And that on non-compliance and refusal by respondent No.1 to comply with the terms of the agreement, the appellant had no option but to file the suit.

2. In the written statement, respondent No.1 namely Mst. Muradi denying execution of the purported agreement to sell and receipt of earnest money from the appellant, attributed commission of fraud, forgery and fabrication by the appellant. She specifically pleaded that on the death of her son, she feared sale of the shares of her grand-daughters by her daughter-in-law as her daughter-in-law got remarried. And that the appellant thus offered to obtain guardianship in her favour for her minor grand-daughters. And that at the pretext of obtaining guardianship certificate, the appellant plaintiff obtained her thumb-impressions on a paper which was fraudulently misused by the appellant. And that being an illiterate Pardanashin village woman, she had been subjected to fraud, forgery and deception by the appellant. And that the purported amount of sale price and the earnest money allegedly stipulated in the agreement dated 13-6-1988 (Exh.P.3) was a patent proof of appellant's fraud as the amounts were much below the market price and low beyond imagination.

3. The learned trial Judge framed nine issues. Evidence was recorded.

4. The learned trial Judge through judgment and decree dated 15-6-1994 dismissed the appellant's suit.

5. Appeal filed by the appellant was also dismissed by the learned Additional District Judge Chunian through judgment and decree dated 13-9-2000. Hence the present second appeal.

6. The record of the present RSA was burnt during fire in the record room of this Court. With the assistance of the parties and their learned counsel, the record was reconstructed except for the order sheet of this Court since 2000.

7. After reconstruction of the record, the case was placed before the Court on 26-9-2005. On request of the learned counsel for the appellant, the case was adjourned. On 7-11-2005, the learned counsel for the parties were present and stated that "complete record including evidence and exhibits along with pleadings of the parties had been placed upon record wherefor there was no need to requisition the record for the present appeal." The learned counsel, for the appellant however, sought adjournment to prepare the case. On 14-12-2005 yet another adjournment was sought by Mr. Muhammad Ramzan Choudhary, Advocate for the appellant for being before the Hon'ble Supreme Court of Pakistan. On 24-1-2006, the learned counsel for the appellant was again stated to be before the Hon'ble Supreme Court of Pakistan and adjournment was sought on his behalf. This Court however, in the absence of order sheet and on concession of the learned counsel for the respondents i.e. Ch. Muhammad Zafar Iqbal, Advocate, admitted the appeal for the regular hearing to be heard at an early date being an appeal filed in 2000 and ordered listing of the same for hearing in the 3rd week of March, 2006.

8. In any case, despite order dated 7-11-2005, the record was requisitioned in the interest of justice and to meet the requirements of rules and the law.

9. Record has been received and examined.

10. C.M. No.523-C/2005 has been filed by the appellant to place upon record certified copies of some of the Revenue Record. As 'the record of the learned courts below upon requisitioning is available before this Court alongwith evidence and exhibits wherefor this application is misconceived and is accordingly dismissed.

11. The learned counsel for the appellant Mr. Muhammad Ramzan Choudhary, Advocate is statedly before the Hon'ble Supreme Court of Pakistan and adjournment request on his behalf is made by M/s Yasin Zahid and Muhammad Akbar Advocates. Since the appeal related to 2000 and was specifically ordered to be fixed for this week, the learned counsel appearing on behalf of the learned counsel for the appellant were directed to procure the attendance of the learned counsel for the appellant or otherwise to assist the Court to elaborate the grounds of appeal. M/s Yasin Zahid and Muhammad Akbar Advocates appearing for the learned counsel for the appellant refused to assist the Court and insisted upon an adjournment.

12. It is noted that since 26-9-2005, Mr. Muhammad Ramzan Choudhary, Advocate appeared only on one (late. This appeal was also admitted for the regular hearing in his absence and the same was specially fixed for the hearing in this week. The appeal was accordingly listed in the regular cause list. Yet the learned counsel for the appellant did not seek any adjournment through prior arrangement by obtaining either general adjournment or by making an application thereto. The appellant is also not present. There is no explanation for the absence of the appellant. The learned counsel appearing on behalf of the learned counsel for the appellant apparently sent for the learned counsel for the appellant who still did not appear and was statedly before the Hon'ble Supreme Court of Pakistan. Neither any cause list from the Hon'ble Supreme Court of Pakistan was produced before the Court nor the case and the Bench were cited by the learned associate lawyers of Mr. Muhammad Ramzan Choudhary, Advocate for the appellant.

13. Be that as it may, it was the duty of the appellant and his learned A counsel to be present or otherwise to make appropriate arrangements for the submission of arguments. His Associates denied to assist the Court.

14. In view of the above, this Court has no choice but to dismiss this appeal. F.B./M-242/L????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.