1993 PLP 1325 (CLC)

(b) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑OXVII, R. 3‑‑‑Dismissal of suit for non‑proof of plaintiffs claim by reason of lack of evidence‑‑‑Validity‑‑‑Plaintiff, after framing of issues had not been able to bring his witnesses on as many as 9;10 occasions‑‑‑Plaintiff ultimately having been allowed last opportunity for producing his evidence did not even care to be present in Court on adjourned date, in person, whereupon Trial Court proceeded to apply the penalty provision of OXVII, R.3, C.P.C.‑‑‑Trial Court had no other option, but to close plaintiffs evidence and dismiss his suit for want of evidence, which was the correct course adopted by the Trial Court. (c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑S. 115‑‑‑Dismissal of suit for non‑proof of plaintiffs suit‑‑‑Judgments and decrees delivered by two Courts below did not suffer from any legal infirmity or irregularity‑‑‑Courts below in passing impugned orders had, in fact, served the ends of justice by refusing to prolong the proceedings further and extend to plaintiff undue accommodation‑‑‑Judgments and decrees of Courts below were affirmed in circumstances. Abdul Rashid Sheikh for Petitioner. One Muhammad Khalid instituted a suit in January, 1989, against Muhammad Din, Sharifan Bibi and Mst. Sofia, for recovery of Rs.20,900 (Rs.20,000 in cash, alongwith a wrist‑watch worth Rs.900, claimed to have been given by him to the defendants, while asking for hand of Safia Bibi for her marriage with his brother, Muhammad Shafique, the defendants having subsequently backed out, and that too, when the bridegroom with procession had arrived outside the house of the bride. The suit was contested and th8 plaintiff was called upon to produce his evidence.

2. The plaintiff's evidence was closed on 8‑12‑1991, as he had availed of a number of opportunities, and had failed to examine even a single witness. The suit was dismissed for non‑proof of the plaintiffs claim, by reason of lack of evidence, on the same day, i.e. 8‑12‑1991, by the learned Civil Judge, Sahiwal, Mr. Nasrullah Khan. The unsuccessful plaintiff filed an appeal, which was, on 28‑11‑1992, dismissed by Mr. Sarfraz Ahmad Tarar, Additional District Judge, Sahiwal. The plaintiff has preferred the present revision petition.

3. Learned counsel appearing for the plaintiff‑petitioner does not deny that large many chances had been given to the plaintiff for his evidence. I am amused to hear him arguing that although the plaintiffs evidence could be closed under Order 17, rule 3, C.P.C., it was not open to the trial Court to have dismissed the suit. The Court should have instead proceeded with the suit, it is submitted. The learned counsel, however, has been unable to satisfy me as to how could the suit be proceeded with, when neither the plaintiff nor his witnesses were in attendance, and especially when the nature of his claim was such that it required sufficient evidence of oral character, in support, without there being available on record any document, whatever, having been brought into being at the time of payment of the amount in question. A perusal of the judgment of the learned Additional District Judge reveals that after the issues were framed on 31‑1‑1990, the plaintiff had not been able to bring his witnesses on as many as 9/10 occasions. On 13‑11‑1991, the plaintiff came to the Court, but without his witnesses, and he was allowed one last opportunity for producing his evidence. When even on the next date, i.e. 8‑12‑1991, it was g the same situation, and the plaintiff had not even cared to be present in person, the trial Court proceeded to apply the penalty provision of Order 17, rule 3, C.P.C. Manifestly the learned trial Judge had no other option but to close the plaintiff's evidence and chuck out his case for want of proof.

4. The judgments and decrees delivered by the two Courts below do not suffer from any legal infirmity or irregularity, and in fact in passing the impugned orders the lower Courts had served the ends of justice by refusing to prolong the proceedings further and extend to the plaintiff‑petitioner undue accommodation. The revision petition has no merit and is hereby dismissed in limine. AA./M‑928/L Revision dismissed.