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‑‑‑0. XVII, R. 3‑‑Closing of evidence‑‑Defendant to whom many opportunities were provided by Trial Court on his own request to produce evidence, having failed to produce same, his evidence was closed on date when neither he nor his witnesses appeared before Trial Court on adjourned date‑‑Petitioner's plea of illness, not supported by evidence on record, Trial Court, held, was justified in circumstances in closing evidence of the defendant and deciding case forthwith on basis of evidence on record.

Syed Tasleem Ahmad Shah v. Sajawal Khan etc. 1985 S C M R 585 ref.

‑‑‑S. 25‑‑Sale price of pre‑empted land, determination of‑‑Pre‑emptor volunteering to pay price of pre‑empted land as shown by vendees‑ Controversy as to price of suit land as shown by pre‑emptor or actually paid by vendees, held, was set at rest in circumstances.

‑‑‑S. 115‑‑Revision‑‑Production of evidence at revisional stage‑‑Effect‑ Production of medical certificate at revisional stage, held, was of no significance.‑‑[Evidence].

‑‑‑S. 115, 0. XVII, R. 3‑‑Revisional jurisdiction, exercise of‑‑Closing of evidence‑‑Mere fact that various adjournments sought by defendant for production of his evidence were not objected to by plaintiff, held, would not absolve defendant to produce evidence‑‑Concurrent judgment and decree passed by two Courts below due to failure of defendant to adduce evidence, could not be interfered with in revisional jurisdiction of High Court.

Ghulam Mahmood Qureshi for Petitioner C.A. Rehman for Respondent. Date of hearing: 2nd November, 1986.

This revision petition calls in question the validity of judgment and decree dated 10‑3‑1983 of the learned Additional District Judge, Gujranwala whereby he dismissed petitioner's appeal and maintained judgment dated 14‑2‑1983 of the learned Civil Judge, Gujranwala decreeing respondent's suit for possession of the disputed land in exercise of his right of pre‑emption.

2. Mst. Ismat Bano by means of registered sale‑deed, dated 17‑7‑1979 alienated land measuring 53 Kanals and 7 Marlas situate in Mauza Dnang, Tehsil and District Gujranwala in favour of Bashir Ahmad petitioner for a consideration of Rs.50,000. Muhammad Aslam respondent on 16‑7‑1980 instituted a suit for possession of the aforesaid land in exercise of his superior right of pre‑emption. He pleaded that he was owner of land in Mauza Dhang where the land in dispute is situate whereas the petitioner‑vendor was a stranger. He further pleaded that the land in dispute was in fact, sold for a sum of Rs. 30,000 but to defeat his right of pre‑emption the sale price was shown to be Rs.50,000 in the sale‑deed. The petitioner contested the suit and controverted agreements made in the plaint. The pleadings of the parties gave rise to following issues:‑

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The plaintiff /pre‑emptor closed his evidence on 5‑4‑1982 and the case was fixed on 5‑5‑1982, for evidence of the petitioner. On 5‑5‑1982, the petitioner sought adjournment as he was unable to produce his complete evidence on that date. His request was allowed, the case was adjourned to 10‑7‑1982 subject to payment of Rs. 25. On 10‑7‑1982, again the case was adjourned to 22‑9‑1982 for petitioner's evidence. On 22‑9‑1982 the petitioner did not lead evidence as his counsel was not available on that date. The petitioner's request for adjournment was not objected to, by the respondent. The case was finally fixed on 14‑2‑1983 for petitioner's evidence. On 14‑2‑1983 petitioner's counsel appeared but neither the petitioner nor his witnesses turned up. The learned trial Judge, therefore, closed his evidence and decreed the suit.

On appeal the petitioner pleaded that on 14‑2‑1983 he fell ill, and was unable to contact his counsel or to produce evidence. He, however, brought nothing on the record in support of his plea. Consequently, the learned Additional District Judge vide impugned judgment and decree dismissed his appeal. Being aggrieved by the aforesaid judgments and decrees, the petitioner has filed this revision petition.

3. Learned counsel for petitioner contended that petitioner fell ill on 14‑2‑1983. He was unable to appear himself and produce evidence on that date. In support of his contention the petitioner produced a medical certificate from private medical practitioner at Kamoke testifying petitioner's illness on 14‑2‑1983. It was also contended that since no objection was raised to the grant of adjournment on the previous date viz. 22‑9‑1982, by the opposite side the provisions of Order XVII, Rule 3, C.P.C. were wrongly applied in the matter. He relied on Syed Tasleem Ahmad Shah v. Sajawal Khan etc. 1985 S C M R 585 in support of his submission,

4. Mr. S. A. Rahman, Advocate, learned counsel for respondent on the other hand contended that petitioner's plea of illness was just an afterthought otherwise he would have produced medical certificate before the learned Additional District Judge. It was further contended that the learned lower Courts concurrently decreed respondent's suit on the available record; which merit no interference in revisional jurisdiction of this Court.

5. I have considered the contentions raised by learned counsel for the parties, and have perused various interim order passed by the learned trial Court. On 5‑5‑1982 the case was adjourned to 10‑7‑1982 for evidence of the petitioner subject to payment of costs. It is not clear as to whether on 10‑7‑1982 the petitioner brought evidence in Court. The case was, however, adjourned to 29‑9‑1982 for evidence of the petitioner. On this day, the petitioner brought witnesses but did not lead evidence as his counsel was out of station. He requested for adjournment of the case to produce evidence on the next date. The opposite‑party did not object to the adjournment of the case. On the final date viz. 14‑2‑1983 neither the petitioner nor his witnesses appeared in the Court. Even his learned counsel made no request for adjournment of the case. The learned trial Court was, therefore, justified to close his evidence and decide the suit forthwith. The respondent volunteered to pay Rs. 50,000 for the suit land, and, therefore, the controversy as to whether the suit land was sold at Rs, 30,000 or Rs. 50,000 was set at rest. The onus to prove issues Nos. 3 and 4 was on the B petitioner, there being no evidence on the record on behalf of the petitioner the same were rightly decided in favour of the respondent. The documentary evidence consisting upon gift deed (Exh. P.2) and Mutation (Exh. P.4) proved that he had superior right of pre‑emption qua the petitioner, inasmuch as that respondent proved to be owner of land in the village whereas the petitioner was stranger. The learned Courts below rightly decided issue No. 5 in favour of the respondent‑plaintiff.

The petitioner failed to substantiate his plea of illness before the learned lower appellate Court as he produced no medical certificate in proof of his illness. The production of medical certificate at revisional stage of the case is of no significance.

The other contention of learned counsel for the petitioner that the case was not adjourned on 22‑9‑1982 at the request of the petitioner has no substance. It was petitioner's counsel who was not available on that date and the evidence could not be recorded. The mere fact that the adjournment was not objected to, by the respondent would not absolve him to produce evidence on 14‑2‑1983. In my view, the learned D trial Judge correctly applied the provisions of Order XVII, Rule 3, C.P.C. and closed his evidence.

Syed Tasleem Ahmad's case cited by learned counsel is distinguishable. In that case, on previous date defendant's witnesses were present but they could not be examined, the plaintiff /pre‑emptor who himself was counsel was reportedly busy before the Cantonment Board and a request on his behalf was made for adjournment of the case which was not opposed by the defendant in that case. It was, therefore, held that the adjournment of the case sought on the previous date was not at the instance of the defendant, the provisions of Order XV II , Rule 3 , C . P . C . were held not applicable.

In the instant case, the adjournment of the case on the previous date viz. 22‑9‑1982 was not made at the instance of the respondent but the case was adjourned at the request of the petitioner. The petitioner has failed to make out case for interference in the impugned judgments and decrees in revisional jurisdiction of this Court.

6. In the result, this petition fails and is accordingly dismissed with no order at to costs.

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