GHULAM RASOOL vs Rai GHULAM MUSTAFA and others

' SAAD SAOOD JAN, J---This is an appeal by special leave from the judgment dated 18-12-1989 of the Lahore High Court whereby the revision petition preferred by the appellant from the judgment dated 15-6-1989 of Additional District Judge, Gujrat, upholding the judgment of the Civil Judge, Kharian, was maintained.

2. On 23-12-1986 the appellant filed a suit before Civil Judge, Kharian, for a declaration to the effect that by operation of an agreement dated 1-4-1%9 between him and Raja Ghulam Mustafa, predecessor-in-interest of the respondents, he had become owner of a plot of land measuring 13 Kanals and 18 Marlas situate in Village Nasira of Tehsil Kharian. The suit was resisted by the respondents who denied the existence of the agreement set up by the appellant. On the pleadings of the parties the trial Court framed as many as six issues, and then adjourned the suit for recording evidence of the appellant. The appellant failed to lead any evidence on three different dates to which the trial was succesively postponed. However, on 17-1-1989 he made a statement before the Court that he did not wish to lead any other evidence except his own affidavit. The learned trial Court declined to receive his affidavit in evidence on the ground that as he was present in person in Court he should appear in the witness-box. After rejecting his prayer in this regard the trial Court closed his evidence and then dismissed the suit for want of evidence. From the judgment of the learned trial Court the appellant preferred an appeal before the Additional District Judge which was dismissed. He filed a revision petition in the High Court but that too met with the same fate.

3. In support of this appeal it is stated that after the trial Court had declined to receive the affidavit of the appellant it should have given him an opportunity to appear as his own witness particularly when he was present before the Court. There is merit in this contention. There is nothing on the record to show that after the rejection of his request with regard to his affidavit, the learned trial Court before closing his evidence allowed him to appear as his own witness. It is the right of a party to make a statement in support of its case. This right seems to have been denied to the appellant by the learned trial Court.

4. It is stated at the Bar that the appellant has since died and that all the evidence which he wanted to lead in support of his case after rejection of his affidavit was his own statement. In the circumstances, we set aside the judgments of the Courts below. The suit may be treated as still pending before the trial Court and disposed of in accordance with law. Learned counsel for the appellant states that after one of the legal representatives has made a statement the case for the plaintiffs will be closed. There will be no order as to costs in this appeal.