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Civil Petition No. 311 of 1984, decided on 6th May, 1985.
(On appeal from judgment and order, dated 24‑1‑1984 of Lahore High Court in Civil Revision No. 548 of 1982).
‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation), Act (XXVIII of 1958), Ss. 10 & 11‑‑Finding of fact that disputed portion of property was transferred to respondent recorded by trial Court and maintained in appeal and revision‑‑Interference declined by Supreme Court.
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O. XVII, r. 3‑‑Closure of evidence‑‑Trial Court making it responsibility of petitioner to secure service of their witnesses but petitioner neither depositing process fee nor making any other effort to secure service of witnesses despite four adjournments given to him for said purpose as well as for securing statement of his special attorney‑‑Trial Court on last date was obliged to close his evidence‑‑Order of trial Court passed under O.XVII, r.3, Civil Procedure Code, not appearing to be harsh or unwarranted in law and High Court also endorsing same‑‑Leave to appeal refused.
Bashir A. Mujahid, Bar‑at‑Law, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 6th May, 1985.
The petitioner who has been unsuccessful as defendant in all the three Courts below in resisting the claim of the plaintiff‑respondent to the possession of a portion of the property, seeks leave to appeal against the judgment of the High Court, dated 28‑1‑1984 whereby her revision petition was dismissed.
The plaintiff /respondent was transferred property SE‑IX‑39‑S‑5 Dharampura, Lahore, and holds P.T.D. for the same. Sultan Beg the predecessor‑in‑interest of the petitioner purchased in auction the adjacent property SE‑IX‑39‑S‑6. The plaintiff claimed a room and Verandah in possession of the petitioner as part of the ‑property transferred to him. The suit was contested. The petitioner's evidence was closed under Order XVII, rule 3, C.P.C. Her application under Order XVIII, rule 2 was also dismissed. The suit was decreed against her. Her appeal and revision both failed.
The learned counsel for the petitioner contended that the finding of fact that the disputed portion was a part of the property transferred to plaintiff /respondent was patently incorrect and untenable. He also challenged the closure of her evidence.
The finding of fact was recorded by the trial Court and maintained in appeal and revision on an admission of the predecessor‑in‑interest of the petitioner in litigation with the respondent. The trial Court expressed it in the following words:‑
"The defendants Nos. 1 and 2 had purchased the property transferred to Sultan Beg from himself. Obviously the defendants Nos. 1 and 2 were to be the owners only of the property that had been transferred to Sultan Beg. And as they happened to become successors‑in‑interest of Sultan Beg, the admission made by Sultan Beg regarding the plaintiff's claim would be completely binding on the defendants Nos. 1 and 2. Some time back the present plaintiff had brought a declaratory suit against the said Sultan Beg and in his written statement filed in that case, Sultan Beg had admitted the present plaintiff to be the exclusive owner of two rooms and one Verandah comprising House No. SE‑IX‑39‑S‑5. The foregoing Sultan Beg further admitted therein that the said rooms and Verandah did not at all form a part of House No. SE‑IX‑39‑S‑6. That being the case, the present defendants Nos. 1 and 2 who are the privy of Sultan Beg, cannot avoid that admission successfully. And thus they must accept the preposition that the disputed property is exclusively owned by the present plaintiff. The issue No. 4 is, therefore, answered in the affirmative."
The compromise between the parties, dated 11‑2‑1965 (Annexure 'B/1'), the admission of Sultan Beg bear out this finding of fact.
As regards the closure of evidence the first appellate Court found as follows:‑
"The adjournment made on 5‑6‑1974 by the learned trial Court clearly shows that the learned trial Court had made it responsibility of the appellants to secure the service of the witnesses for 26‑6‑1974 but for this date the appellants neither deposited the process fee nor took any other effort to secure the service of their witnesses and so the learned trial Court was left with no except to proceed under Order XVII, rule 3, C.P.C. on 26‑6‑1974. The record further shows that on this date too the learned trial Court gave yet another adjournment for getting the statement of the special attorney of the appellant recorded but the appellants again succeeded in getting at least four adjournments for the statement of the special attorney of the appellants but on 9‑9‑1974 the learned trial Court was obliged to close his statement also under Order XVII, rule 3, C.P.C. From the proceedings taken up by the learned trial Court on the record it cannot be said that the order of the learned trial Court under Order XVII, rule 3, C.P.C. was harsh or unwarranted in law."
The High Court endorsed these remarks.
Learned counsel has not been able to show from any record filed that these remarks are against fact or undeserved.
We find that it is not a fit case for grant of leave to appeal which is hereby refused.
M. Y. H. Leave refused.
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