2015 PLP 1401 (SCMR)

MIAN SAQIB NISAR, J.

The appellant is the plaintiff in a suit for declaration, in which issues were framed and the parties were put to trial. The appellant on his request availed four opportunities for adducing his evidence and on two such occasions he was cautioned of further opportunity as being the last one, yet he failed to produce his evidence. Resultantly, by applying the provisions of Order XVII, Rule 3, C.P.C., the evidence of the appellant was closed and the suit was dismissed for the lack of proof. This order when challenged by the appellant in appeal was upheld and his revision before the learned High Court has also failed. Leave in this matter was granted on 3-4-2014 to consider the case on the touchstone of the law laid down in the judgment reported as Muhammad Arshad v. Muhammad Jahanzeb Khan (2008 SCMR 1335).

2. Heard. It has been argued that only within a period of 1 month and 26 days, the evidence of the appellant was closed; besides, the appellant should have been asked by the court to at least have his statement recorded; it is further argued that no direction was issued to the appellant to produce his evidence and thus the case is covered by the judgment of this Court (supra). Before proceeding further, it may be pertinent to mention here that the case Muhammad Arshad (supra mentioned in the leave granting order) by itself is only a leave granting order and is not the enunciation of law by this Court. Be that as it may, once the case is fixed by the Court for recording the evidence of the party, it is the direction of the court to do the needful, and the party has the obligation to adduce evidence without there being any fresh direction by the court, however, where the party makes a request for adjourning the matter to a further date(s) for the purposes of adducing evidence and if it fails to do so, for such date(s), the provisions of Order XVII, Rule 3, C.P.C. can attract, especially in the circumstances when adequate opportunities on the request of the party has been availed and caution is also issued on one of such a date(s), as being the last opportunity(ies). In the present case we have seen that the appellant was cautioned on two occasions, which means that the appellant was put to notice that if he fails to adduce evidence, action shall be taken. As far as the question that at least the statement of the appellant should have been recorded, suffice it to say that such issue had been considered in the judgment reported as Muhammad Aslam v. Nazir Ahmed (2008 SCMR 942) in which it was held that if the plaintiff was in attendance the court should have allowed him to appear in the witness box so as to get his statement recorded. The above judgment of this Court has been taken into account in the latest pronouncement of this Court in Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others (2014 SCMR 637) in which similar question was involved, and though other evidence of the delinquent party was closed, but it was argued that the statement of plaintiff/defendant at least, should be allowed to be recorded; and it was held as under:- "

5. In the above context, it may be held that in every case where the action against a delinquent party is imperative and his evidence has to be closed because the case squarely and eminently falls within the mischief of Order XVII, Rule 3, C.P.C., the court while closing the evidence is not in any manner obliged to adjourn the case and require or ask the litigant to appear and examine himself as a witness on a subsequent date. Obviously if the party is present in the court and desires to appear as a witness the court should not decline his request, rather it shall be appropriate that where the party is present, the court while applying Order XVII, Rule 3, C.P.C. and closing the evidence on a given date should itself ask the party to avail the chance of appearing as his own witness, and should also record such fact in its order (order sheet) that a chance was given to the litigant which has not been availed. However, if this fact is not so recorded by the court though the party was present and sought its examination such party should initially move an application to the court for examination if the case has not yet been decided. But where the case is finally decided a ground should be specifically set in the memo of appeal/revision as the case may be about the presence of the party and asking for the examination, which should be supported by an affidavit of the counsel of the said party to the above effect." In the present case, as mentioned above, it is clear from the record that the appellant had availed four opportunities to produce his evidence and in two of such orders (the last in the chain) he was cautioned that such opportunity granted to him at his request shall be the last one, but still on the day when his evidence was closed in terms of Order XVII, Rule 3, C.P.C. no reasonable ground was propounded for the purposes of failure to adduce the evidence and justification for further opportunity, therefore, notwithstanding that these opportunities granted to the appellant were only in a span of about 1 month and 26 days, yet his case squarely fell within the mischief of the provisions ibid and his evidence was rightly closed by the trial court. As far as the argument that at least his statement should have been recorded, suffice it to say that the eventuality in which it should be done has been elaborated in the latest verdict of this Court (2014 SCMR 637). From the record it does not transpire if the appellant was present on the day when his evidence was closed and/or he asked the court to be examined; this has never been the case of the appellant throughout the proceedings of this case at any stage; as there is no ground set out in the first memo of appeal or in the revision petition. Resultantly, we are not persuaded to hold that the provisions of law (Order XVII, Rule 3, C.P.C.) have been wrongly applied to the appellant's case or that he should be given the benefit of the judgment Muhammad Aslam v. Nazir Ahmed (2008 SCMR 942). In light of the above, we do not find any merit in this appeal which is accordingly dismissed. MWA/T-1/SC Appeal dismissed.