AMANULLAH KHAN Versus AKHTAR BEGUM

SAJJAD ALI SHAH, J: ‑ ‑This appeal with leave of the Court is directed against order dated 17‑10‑1989 of learned Single Judge of Lahore High Court, Lahore, whereby R.S,A. No.91 of 1989 is dismissed in limine in the background of facts stated as under.

2. Land measuring 448 Kanals 2 Marlas described in the plaint at page No.55 of the paper book was sold on 14‑3‑1970 to vendees Asmatullah and others who are appellants before us for Rs.1,79,240. Mst. Akhtar Begum, who is sister of vendor filed pre‑emption suit in the Court of Civil Judge, Daska District Sialkot, against vendees on the basis of her superior right and claimed therein that sale was made for Rs.68,400 which was market value of the land, as against fictitious price shown at Rs.1,79,240. Vendors resisted the suit on the grounds stated in the written statement. As many as 12 issues were framed keeping in view pleadings of the parties. On 17‑9‑1975 evidence of vendors/defendants was closed under Order XVII, Rule 3, C.P.C. as they did not bring their witnesses and suit was decreed in favour of plaintiff. Vendors filed appeal which was dismissed by learned District Judge, Sialkot, on the ground that they failed to make good deficiency in the court‑fees. Second appeal in the High Court was allowed and the case was remanded with direction that if deficiency in the court‑fee had been made good by that time, appeal should be decided on merits, if not then reasonable opportunity be allowed to make up the deficiency. After deficit court‑fee was paid, appeal was heard on merits and dismissed on 15‑6‑1989. Against the decision, Regular Second Appeal was filed in the High Court which is dismissed in the terms stated above.

3. Before this Court it was contended on behalf of appellants/vendees that in the trial Court several issues were framed and on some issues burden was placed upon pre‑emptor and she produced evidence but after closing evidence of vendees/defendants in the suit under Order XVII, Rule 3, C.P.C. suit was decreed straightaway without considering material and evidence brought on the record. Leave has been granted to consider that contention.

4. Both Ist appellate Court and the High Court have upheld the order of the trial Court passed under Order XVII, Rule 3, C.P.C. as justified and warranted for the reason that vendors as defendants in the suit failed to produce their witnesses on 17‑9‑1975. Order XVII, Rule 3, C.P.C. contemplates that where any party to a suit to whom time has been granted, fails to produce his evidence or to cause the attendance of his witnesses, or to perform any other act necessary to further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. Order under Order XVII, Rule 3, C.P.C. was passed on 17‑9‑1975 and now it is to be seen whether in the trial Court on the dates of hearing earlier than 17‑9-1975, time was given to defendants in the suit to produce their witnesses, which they failed to do.

5. Perusal of the case diary shows that case was ‑fixed for recording of evidence of the parties on 6‑3‑1975 and on that date partial evidence of plaintiff was recorded and case was adjourned to 10‑7‑1975. On that date evidence of plaintiff was concluded and evidence of the defendants was to be recorded but since that evidence was not available, defendants were burdened with costs. The case was adjourned to 17‑9‑1975 for recording evidence of defendants and their request was accepted to the extent that one Government employee was to be summoned through the Court and the remaining witnesses, who were private persons were not to be summoned through the Court but were to be brought by the defendants. On 17‑9‑1975 defendants did not bring their witnesses and before that did not make an application for summoning the Government employee witness. On the contrary plea was taken that on that day plaintiff in the suit had made an application for amendment of the plaint, hence they were under the impression that their evidence would not be recorded. This plea was not accepted for the reason that defendants were unaware that such application was to be filed for amendment by the plaintiff, which was formal in nature as some Khasra numbers in the case property were to be changed, which was allowed by the Court. It is, therefore, very dear that defendants in the suit could not advance plausible reason for not making available their evidence on 17‑9‑1975 for which they were given time specifically and in connection with which on previous occasion they were burdened with costs. Plea that plaintiff had applied for amendment in the plaint does not advance the case of the defendants, for the reason that it was made in their absence and without their knowledge and in such circumstances even otherwise they were expected to bring their witnesses. Amendment was formal in nature and was allowed by the Court and was not supposed to come .in the way of recording evidence of the defendants.

6. On the legal plane it appears that Order 17, Rule 3, C.P.C. contemplates that when any party fails to produce evidence, the Court may notwithstanding such default, proceed to "decide" the suit forthwith. According to dictionary words "to decide" mean "settle (question, issue, dispute) by giving victory to one side; give judgment (between, for, in favour of, against), bring come to a resolution". "Decision" means "settlement, conclusion, formal judgment, making up one's mind". Word "decision" came up for examination in the case of Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 and it was held that "decision" means judicial determination in accordance with evidence before the Court. Coming back to' Order XVII, Rule 3, C.P.C. the requirement of the law is that the Court has to decide the suit which means that material and evidence brought on the record is to be considered in order to decide the suit. In the instant case evidence of the plaintiff was recorded and from issues in several burden was put on the plaintiffs. Side of the defendants was closed as they failed to bring their witnesses on the date of hearing. In the circumstances it was mandatory for the Court to have examined the evidence brought on the record. It was not proper to have decreed the suit straightaway without examination of evidence brought on the record.

7. From the judgment of Ist appellate Court (page 33 of paper book) it appears that of two issues burden was placed upon the plaintiff and these issues are whether plaintiff has superior right of pre‑emption and what is the market value of the suit land. On behalf of the plaintiff two witnesses have been examined namely; P.W.1 Farman Ali, Advocate, who claimed to be Numberdar of Tehsil Jaranwala, District Lyallpur. He stated that vendor was cousin of his father and plaintiff is sister of vendor. P.W.2 is Ikram whose father Muhammad Hussain married Akhtar Begun as his second wife after the death of mother of 1kram. He further stated that Akhtar Ali is brother of plaintiff Mst. Akhtar Begum, who are even otherwise related to him on his mother's side. In cross‑examination this witness denied that defendants installed motor or constructed house on the suit land before the institution of suit but admitted that after the filing of suit they have constructed one house. During the arguments before us learned counsel for both the parties agreed that respondent/plaintiff was prepared to pay to the appellants/defendants money actually paid by them and also on stamps and District Council fees. Appellants are allowed to remove tubewell from the suit land. By consent of the parties Rs.1,79,240 which is price mentioned in the sale‑deed and other actual payments as stated above are to be deposited up to 30‑3‑1993. Impugned judgment is modified to the extent stated above. Appeal is disposed of in the above terms.

M.BA./A‑979/S Order accordingly