2010 PLP 1422 (SCMR)

KHILJI ARIF HUSSAIN, J.

Aggrieved by the dismissal of his revision by the impugned judgment dated 24-10-2005 passed by learned Peshawar High Court, Peshawar, the petitioner/plaintiff seeks leave to appeal.

2. The petitioner/plaintiff instituted a declaratory suit on 3-12-1995 in the Court of Senior Civil Judge, Lakki Marwat, to the effect that the suit property, described in the plaint, was purchased by the ancestor of defendant No.1 and mutation No.2488 dated 4-4-1950, was wrongly effected and similarly inheritance mutation No.2789 attested on 20-11-1957 was also a result of fraud and mutation No.4318 dated 29-5-1983 by the ancestor of the respondent/defendant Nos.2 and 3 in favour of respondent/defendant No.1 was an attempt to deprive the petitioner/ plaintiff of his due right. The petitioner/plaintiff prayed that all the above mentioned mutations be declared illegal incorrect and ineffective upon his rights and also sought possession of the suit property.

3. In support of his suit, the petitioner/plaintiff produced only one witness i.e. Halqa Patwari P.W. and on the dates fixed by the trial Court for recording further evidence of his side, he failed to produce any evidence and the learned trial Court was left with no alternative but to proceed under Order XVII, Rule 3, C.P.C., and on the basis of the evidence adduced before him, learned Civil Judge, Lakki, by his judgment and decree dated 24-6-2002, dismissed the suit of the petitioner/plaintiff, against which he filed appeal, which too was dismissed by learned District Judge, Lakki, by his judgment and decree dated 10-3-2003. There against the petitioner/plaintiff preferred civil revision, which has also been dismissed by learned Peshawar High Court, Peshawar, by its impugned judgment dated 31-1-2006, giving rise to this petition.

4. Mr. Waseem-ud-Din Khattak, .ASC in support of the petition, vehemently contended that proper opportunity for producing the evidence was not provided to the petitioner/plaintiff by the trial Court while dismissing his suit, the appeal filed by him too could not succeed, and so also the revision preferred thereagainst by the petitioner/plaintiff was dismissed by learned High Court committing error of law by not appreciating this aspect of the matter.

5. After hearing learned counsel and, with his assistance, perusing the record, we find that trial Court has rightly opted the provision of Order XVII Rule 3, C.P.C. and dismissed the suit on the basis of the evidence produced before it and learned appellate Court as well as learned High Court have also come to the right conclusion with cogent reasons discussing the matter comprehensively. Para 6 of the impugned judgment of the High Court is reproduced for ready reference:-- "In any case after an extraordinary delay of six years, the evidence of the official witness was completed on 5-2-2002, the petitioner/plaintiff should have produced the entire evidence on 5-4-2002. Absence of his counsel cannot excuse the absence of his witnesses. Further adjournment to a period of more than two months i.e. 24-6-2002, was with the clear direction that the entire evidence must be produced, otherwise the evidence shall be closed under Order XVII Rule 3, C.P.C. The last opportunity was provided but still the evidence was not available. Hence the Court was left with no alternative but to proceed in accordance with law. No illegality or irregularity has been committed by the learned trial Court. The argument with regard to the illness of a witness has not been raised on the day whey the evidence was closed. It was taken as a ground in the memorandum of appeal but even then neither the name of the witness nor nature of illness or .any proof thereof was produced. No evidence, whatsoever, in this regard was placed on file even in the revision petition."

6. The trial Court had shown sufficient indulgence and there does not appear any impropriety or defect for ultimately closing side of the petitioner/plaintiff on account of his consistent failure to produce evidence despite seeking repeated adjournments.

7. As regards the contention of learned Advocate for the petitioner that trial Court could not dismiss the suit without considering the evidence on record, has no cavil with this proposition. From the record it appears that not only trial Court but also appellate Court on the basis of evidence on record came to the conclusion that petitioner/ plaintiff failed to prove his claim.

8. To satisfy ourselves, we called upon the petitioner to refer to any piece of evidence on record, on the basis of which decree can be passed in his favour, which he failed to point out.

9. In this view of the matter, there seems no infirmity in the impugned judgment warranting interference by this Court.

10. In the given circumstances, there is no substance in this petition. The same is dismissed and leave refused, accordingly. S.A.K./T-1/SC Leave refused.