P L D 2026 Peshawar 43 (PLP)

MUHAMMAD IJAZ KHAN, J.

Through this appeal, the appellant-company has challenged the order and judgment of the learned Additional District Judge-I, Nowshera dated 27.05.2021, whereby, while invoking the provisions of Order-XVII, Rule 3 C.P.C. its right of producing evidence has been struck off and its suit has also been dismissed.

2. Precisely, the facts leading to the filing of the instant appeal are that the present appellant / plaintiff filed a suit for recovery of Rs.81,040/- outstanding against the respondent / defendant on account of consumption charges and other related charges consumed by him as per the rules of the appellant-company, which suit was contested by the respondent / defendant by filing his written statement and thereafter issues were framed and the present appellant being plaintiff was directed time and again to produce its entire evidence however, the same was not produced and at last by pressing into service the provisions of Order XVII, Rule 3 C.P.C. its right to produce evidence was struck off and its suit was also dismissed vide impugned order and judgment dated 27.05.2021, hence the instant appeal.

3. Arguments of both the learned counsel for the parties were heard and record perused with their able assistance.

4. The main arguments of the learned counsel representing the appellant was that the learned trial was required to provide an opportunity to the appellant / plaintiff to produce its evidence, however, its suit was dismissed under Order, XVII Rule 3 C.P.C. without providing a reasonable time to the appellant / plaintiff to produce its evidence. Learned counsel for the appellant also made a request that the desired opportunity may be provided to it, of course, subject to payment of a reasonable cost, however, as against this, learned counsel for the respondent argued that reasonable time as well as several opportunities but it did not comply with the court direction and as such the learned trial court has rightly struck off its defence as well as dismissed the suit.

5. In view of the above contentions of the learned counsel for the parties on the last date, the original record of this case was requisitioned and today the same is available and it was gone through with the able assistance of both the learned counsel for the parties, which prima facie shows that the present appellant / plaintiff has been provided reasonable time / opportunities of producing its evidence, however, the appellant / plaintiff has repeatedly avoided to comply with the order of the court and has shown a high degree of negligence towards fulfillment of its obligation which is to be highlighted as below:

6. The record would show that the instant suit was filed on 24.01.2017 and it was on 11.10.2017 when respondent / defendant submitted his leave to defend application. Record further shows that on 29.01.2018, the leave to defend application of the respondent / defendant was allowed and the same was treated as written statement on his behalf. The record further shows that thereafter both the parties had made request for a peaceful settlement outside the court and for this very purpose, the case has been adjourned for considerable time and at last it was on 07.01.2021 when the efforts between the parties for the compromise were dropped and the present appellant / plaintiff was directed to produce its entire set of evidence and the case was adjourned for 19.01.2021. The order sheet of 19.01.2021 would show that the learned trial court has observed that it is an old case of 2017 and in the last four years not even a single PW has been examined, therefore, the present appellant / plaintiff was served with a notice under Order XVII, Rule 3 C.P.C. to produce its entire set of evidence on the adjourned date of hearing and in case of failure penal provisions of the said Order will be pressed into service. The record further shows that on the next date of hearing i.e. on 11.02.2021, again the present appellant / plaintiff did not produce its evidence and the learned trial court by showing leniency again issued notice to the present appellant / plaintiff under Order XVII, Rule 3 C.P.C. with a reminder that in case of failure, the penal provisions of the ibid Order would be pressed into service. The record further shows that on 11.03.2021, an absolute final/last opportunity was provided to the appellant / plaintiff to produce its evidence and it was again served with a notice under Order XVII, Rule 3 C.P.C. but again it did not produce its evidence and as such yet again on 15.04.2021 when the evidence of the appellant / plaintiff was not in attendance, it was served under a notice under Order XVII, Rule 3 C.P.C. and the case was adjourned to 27.05.2021. On 27.05.2021, when the evidence of the appellant / plaintiff was not in attendance then the learned trial court while invoking the provisions of Order XVII, Rule 3 C.P.C. struck off the right of producing evidence of the appellant/plaintiff and its suit was dismissed. The aforesaid order sheets of the learned trial court would demonstrate that the learned trial court has provided sufficient time and several opportunities to the appellant / plaintiff but it has miserably failed to produce its evidence, therefore, the learned trial court has rightly invoked the provisions of Order XVII, Rule 3 C.P.C.

7. It would also be not out of place to mention here that it is the conduct of the appellant / plaintiff which has compelled learned trial court to press into service the provisions of Order XVII, Rule 3 C.P.C. as despite provision of sufficient time to the present appellant / plaintiff spreading over a period of years, it has failed to perform the requisite act on its behalf i.e. to produce its evidence, therefore, its failure would definitely lead to the penal consequences as provided under Order XVII, Rule 3 C.P.C. The said Rule being relevant is reproduced below:‑ "

3. Court may proceed notwithstanding either party fails to produce evidence, etc: 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 the further progress of the suit for which time has been allowed, the Court may, notwithstanding each default, proceed to decide the suit forthwith." The plain reading of the aforesaid Rule obligates the Court to proceed with the case and to decide the same if time has been granted to a party and who, firstly fails to produce his evidence; or secondly fails to cause the attendance of his witnesses; and thirdly fails to perform any other act necessary to the further progress of the suit, and thus if the aforesaid yardstick is applied to the case of the present appellant / plaintiff, then it is part of the record that appellant / plaintiff has been provided reasonable time and opportunities to perform the directed act of producing its entire evidence, but it has miserably failed to comply with the same and thus, it has to suffer the penal consequences.

8. It would not be out of place to mention here that as per the recent jurisprudence established by this Court as well as the Apex Court, it has consistently been held that strict adherence to procedural laws, especially in civil cases, is imperative. The procedure adopted by the learned Court below of providing numerous opportunities for performance of directed act has been deprecated and even non-compliance of direction to produce evidence has been found to be fatal, warranting dismissal of the suit. In a case1, the Apex Court has observed that the trend of granting Akhri Mouqa then Qatai Akhri Mouqa and then Qatai Qatai Akhri Mouqa made a mockery of the provisions of law and those responsible to interpret and implement it, and that such practice must be discontinued forthwith. The relevant para of the judgment is reproduced below: - "In our view it is important for the purpose of maintaining the confidence of the litigants in the court systems and the presiding officers that where last opportunity to produce evidence is granted and the party has been warned of the consequences, the court must enforce its order unfailingly and unscrupulously without exception. Such order would in our opinion not only put the system back on track and reaffirm the majesty of the law but also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reason. Where the Court has passed an order granting the last opportunity, it has not only passed a judicial order but also made a promise to the parties to the us that no further adjournments will be granted for any reason. The Court must enforce its order and honour its promise. There is absolutely no room or choice to do anything else. The order to close the right to produce evidence must automatically follow failure to produce evidence despite last opportunity coupled with a warning. The trend of granting (Akhri Mouqa) then (Qatai Akhri Mouqa) and then (Qatai Qatai Akhri Mouqa) make a mockery of the provisions of law and those responsible to interpret and implement it. Such practices must be discontinued, forthwith." Similarly, in another case2, the apex court reinforced the aforesaid principle in the case of Moon Enterpriser and emphasized that higher court must not undermine the trial court discipline, with the only exception that if the trial court has acted in perversity or arbitrariness. Likewise, in another case3, the Apex Court held that in less than two-months time the plaintiff obtained four adjournments in which two adjournments were made on a caution that no further time would be granted but still the plaintiff did not produce his evidence, therefore, the trial court closed his evidence and dismissed the suit. The appellate Court, the revisional Court and the Apex Court upheld the said decision of the trial Court. In the same way, in a case4, it was observed by the Apex Court that Rule 3 of Order XVII C.P.C. is a penal provision which is to be strictly enforced and where a party to the suit has frittered away ample opportunity to lead his evidence then the trial court would be justified to close their case. In another case5, after repeated adjournments when the plaintiffs failed to comply with the court direction, their suit was dismissed and the Baluchistan High Court observed that in the given facts and circumstances, the conduct of the plaintiffs is contemptuous and it squarely falls within the ambit of Rule-3.

9. In view of the above discussion and exposition of law, the instant appeal being bereft of any merit is hereby dismissed. UN/231/P Appeal dismissed. 1 Moon Enterprises CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another (2020 SCMR 300). 2 Imran Ahmad Khan Niazi v. Shabaz Sharif (2023 SCMR 636). 3 Rana Tanveer Ahmad v. Naseer-ud-Din and others (2015 SCMR 1401). 4 Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others (2014 SCMR 637). 5 Baz Muhammad Kakar v. Syed Abdul Rasheed and another (2022 MLD 516).