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Petitioner: Haji MUHAMMAD SHAM KHAN VS Respondent: MUHAMMAD SIDDIQUE KHAN
2001 M L D178
2001 M L D178
[Supreme Court (AJ&K)]
Present: Sardar Said Muhammad Khan, CJ. and Muhammad Yunus Surakhvi, J
Haji MUHAMMAD SHAM KHAN-‑‑Appellant
versus
MUHAMMAD SIDDIQUE KHAN and another‑‑‑Respondents
Civil Appeal No. 170 of 1999, decided on 11th April, 2000.
(On appeal from the order of the High Court, dated 6‑10‑1999 in Civil Revision No. 100 of 1998).
Civil Procedure Code (V of 1908)‑‑‑‑
‑‑‑‑O.XVII, 1Z. 3‑‑‑Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.), S.14‑‑‑Suit for pre‑emption ‑‑‑Closing of evidence‑‑ Plaintiff despite availing several opportunities to get his statement recorded had failed to do so, on which his evidence was closed and case was fixed for evidence of defendant‑‑‑Plea that he was ill was taker by plaintiff for the first time in appeal before Supreme Court in memorandum of appeal ‑‑‑Validity‑‑ Sufficient opportunities having been provided to the plaintiff to get his statement recorded, and he having failed to avail them his evidence was rightly closed.
Sh. Abdul Aziz, Advocate for Appellant. Sardar Muhammad Farooq Khan, Advocate for Respondents.
Date of hearing: 11th April, 2000.
JUDGMENT
MUHAMMAD YUNUS SURAKHVI, J.‑‑‑‑This appeal has been directed against the order of the High Court, dated 6‑10‑1999, whereby the revision petition filed by the plaintiff‑appellant was dismissed.
2. The necessary facts giving rise to the present appeal are that the plaintiff‑appellant filed a suit for possession on the basis of pre‑emption in the Court of Additional sub‑Judge Rawalakot. The suit was contested by the opposite side. After framing the necessary issues and recording the evidence the trial Court dismissed the suit. On appeal to the District Judge the case was remanded to the trial Court and the plaintiff‑appellant was provided with an opportunity to get his statement recorded. On 17‑6‑1998 the District Judge directed the plaintiff‑appellant for getting his statement recorded and fixed the date as 9‑7‑1998. On 9‑7‑1998 the plaintiff‑appellant alongwith his counsel appeared and requested the Court for an adjournment which was granted and the case was fixed for 3‑11‑1998. On 3‑11‑1998 the counsel for the plaintiff‑appellant requested the Court to further adjourn the case because of the absence of the plaintiff. However, the learned District Judge closed the evidence of the plaintiff and fixed the case for the evidence of defendant‑respondents. This order, dated 3‑11‑1998 was assailed through a revision petition in the High Court which was dismissed vide the impugned order, dated 6‑10‑1999. It is the aforesaid order of the High Court which is the subject‑matter of the, present appeal.
3. In support of the appeal, it was vehemently contended by Sh.Abdul Aziz, the learned counsel for the appellant, that after remanding the case the trial Court fixed the date for recording the statement of the appellant on 9‑7‑1998, on which date the appellant was present in the Court but his statement was not recorded. Consequently, the case was adjourned for recording the statement of the plaintiff to 31‑10‑1998, on' the said date the plaintiff was ill and thus, the Court again adjourned the case for recording the statement of the plaintiff to 3‑11‑1998. He has argued that the trial Court did not give reasonable time to the appellant to get his statement recorded and provided only three days to the counsel for the appellant to do the needful, despite the fact that the appellant was ill. Under these circumstances, according to the learned counsel for the appellant, it was desirable to give one more opportunity to the appellant to .get his statement recorded.
4. Sardar Muhammad Farooq Khan, the learned counsel for the respondents, has controverted the arguments raised by the learned counsel for the appellant.
5. We have given our due consideration to the arguments advanced at Bar and perused the relevant record. It had not been the case of the plaintiff appellant in the trial Court; the District Judge and the High Court that the plaintiff‑appellant had remained ill, therefore, he could not get the sufficient opportunity to get his statement recorded. In the orders recorded by the District Judge, dated 17‑6‑1998 and 3‑11‑1998 by Additional sub‑Judge respectively we found nothing of the nature that any plea with regard to the illness of the appellant was brought to the notice of the trial Court. The plea of illness of the appellant for the first time has been raised in the memorandum of appeal in this Court. Even at the time of arguments before the High Court no such plea appears to have been raised by the appellant. In our view sufficient opportunities were provided to the appellant to get his statement recorded but he had been negligent enough not to comply the order of the Courts below.
For the above stated reasons we find no force in this appeal which is hereby dismissed with costs.
H.B:T./130/SC(AJ&K) Appeal dismissed.