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Civil Petition for Special Leave to Appeal No. 87/R of 1979, decided on 7th October, 1979.

(On appeal from the judgment and order of the Lahore High Court dated 13‑2‑1979 in F.A.O. No. 70 of 1978).

____ O. XVII, r. 3‑Leave to appeal to Supreme Court‑Chit showing deposit of process fee for summoning witness not produced before lower Court‑Clear statement on contrary made by petitioner's counsel in trial Court admitting petitioners having not brought any evidence due to some misunderstanding ‑Chit produced in Supreme Court in circumstances not possible to be taken into account for determining correctness of order made by trial Court and upheld by High Court‑Orders of lower Courts, held, to be tested on basis of material placed before. such Courts at relevant time and not on basis, of chit produced in Supreme Court.

Ch. S. M. Ayub Bukhari, Advocate with Ch. Akhtar Ali, Advocate‑on -Record for Petitioners.

Nemo for Respondent.

Date of hearing : 7th October, 1979.

C J.‑This petition seeks leave to appeal against the judgment of the Lahore High Court dated the 13th of February, 1979, whereby an appeal filed by the respondent Muhammad Aslam against an order made by the learned District Judge, Campbellpur, remanding the petitioners' suit for pre‑emption for further trial was reversed, and the order of the trial Court dismissing the suit was restored.

The relevant facts are that on the 5th of April, 1973, the petitioners filed a suit for pre‑emption in respect of an ostensible transaction of gift of agricultural land, asserting that, in fact, it was a sale, and that they had a superior right as compared to the donee. The snit was, however, dis missed by the learned trial Judge on the 11th of November, 1975, on the ground that the petitioners have failed to produce the necessary evidence even though several opportunities had been given to them in this behalf. This order of the trial Court was, however, reversed in appeal by the learned District Judge on the ground that the trial Court should have examined the evidence available on the date when he dismissed the suit for non‑summoning of the witnesses, as at least one witness by the name of Abdul Hameed Suharwardy was present when the suit came up for hearing on the 11th of November, 1975.

The learned Judge in the High Court has observed that the learned District Judge had not examined the record carefully, as otherwise he would have noticed that no witness had appeared on the last date of hearing. The High Court has stated that the issues were framed in the suit as early as the 29th of April, 1974 and the matter was adjourned from time to time upto 11th November, 1975 for the production of the plaintiff's evidence, and except for the Patwari, no other witnesses were summoned nor any had appeared on any of the dates given for the recording of evidence. On the 30th of July, 1975, the case was specifically adjourned to the 11th of November, 1975, for summoning the evidence, but on that date it was discovered that no process fee had been deposited by the peti tioners for this purpose, and the statement made by the learned counsel for the petitioners was that due to some misunderstanding they could not bring their evidence and that they should be given another opportunity. In these circumstances, the learned Judge in the High Court thought that the plaintiffs' conduct attracted the provisions of Order XVII, rule 3 of the Civil Procedure Code, and, therefore, the learned trial Court was justified in proceeding to decide the case on the basis that no evidence had been led by the petitioners in support of the material issues arising in the suit.

Leave to appeal is sought on the sole ground that the statement made by the learned counsel for the petitioners in the trial Court on the last date of hearing of the suit, namely, the 11th of November, 1975, to the effect that no steps had been taken to summon the evidence, was not correct, as in fact, process fee had been deposited on the 6th of November, 1975, for summoning Mr. Abdul Hameed Suharwardi, Advocate. Mr. Bukhari, the learned counsel for the petitioners, submits that this fact should have been brought to the notice of the trial Court, but unfortunately it was not done. In support of his submission the learned counsel has placed on our record a photo state copy of a chit showing the deposit of the process fee for this purpose.

We find that the so‑called chit relied upon by the learned counsel was not produced before the learned District Judge or in the High Court on the contrary a clear statement was made by the counsel for the petitioners in the trial Court on the 11th of November, 1975, that the petitioners had not brought any evidence owing to some misunderstanding. In the circum stances, it is not possible for us to take into account the chit now produced for determining the correctness of the order made by the trial Court and upheld by the High Court. Those orders must be tested on the basis of the material placed before the Courts concerned at the relevant time.

We are, accordingly, satisfied that the petitioners' suit was rightly dismissed for failure to comply with the directions given by the trial Court on the 30th of July, 1975, for the production of evidence by the petitioners in support of the issues the onus of which had been placed upon them. No justification is made out for our interference with the orders passed by the High Court in this behalf. The petition, accordingly, fails and is hereby dismissed.

Petition dismissed

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