1982 PLP 2223 (CLC)

RAJA MUHAMMAD KHURSHID KHAN, ACTG. C. J.‑This appeal by leave calls in question the judgment passed by a learned single Judge of the High Court in exercise of its revisional jurisdiction on 9‑2‑1982 whereby the revision moved by the appellants was rejected and the order recorded by the learned District Judge on 25‑11‑1981 was maintained.

2. The dispute arises in the following way : Respondent Muhammad Sadiq filed a civil suit against the State Life Insurance Corporation of Pakistan Lahore, appellant herein, before the District Judge, Mirpur. He closed his evidence on 11.3‑1981 and the case was posted for 16‑4‑1981 for the evidence of appellants (defendants). No witness was available on that date and the case was adjourned to 14‑5‑1981. On this date too, no witness of the appellants (defendants) was present and a further opportunity was granted to them and the case was posted for 26‑6‑1981 On this date the case had to be adjourned as the plaintiff‑appellants wanted to cross‑examine a witness on the basis of some record which, not being available, was sent for. The case was adjourned to 13‑8‑1981 for making available the relevant record for facilitating the cross‑examination to be conducted by the counsel for the respondent (plaintiff). On this date, the statement of the partly examined witness on the last date was completed and the case was adjourned for further evidence to 15‑10‑1981. On this date too no witness was present and the case was adjourned to 25‑11‑1981, on payment of Rs. 200 as costs. On this date neither the cost was paid nor any witness was present and the learned District Judge felt advised to close the evidence of the appellants and the case was postponed for arguments to 22‑12‑1981.

3. This order of the learned District Judge was unsuccessfully assailed by way of a revision petition before a learned single Judge of the High Court who, vide his order dated 9‑2‑1982, disallowed the same. Hence this appeal to assail the said judgment of the High Court.

4. Leave was granted to consider the following points :‑ (i) Whether the petition for leave to appeal, for want of a proper `Wakalatnama', is incompetent ? and (ii) Whether the learned Judge in the High Court has correctly put forth the interpretation of Order XVII, rule 3 of the Code of Civil Procedure vis‑a‑vis the inherent powers of the Court ?

4. Point No. (i), reflected above, has been, during the course of arguments, abandoned by the respondent. Therefore, the short question which remains for consideration in this case is whether the order of the trial Court is illegal as it does not decide the suit "forthwith" after closing the evidence of the appellant under Order XVII, rule 3; C. P. C.

5. Ch. Muhammad Sharif Tariq, the learned counsel for the appellants, in support of the appeal, has submitted two‑fold arguments. In the first instance he submitted that as the learned trial Court after closing the evidence of the appellants adjourned the case for arguments to 22‑12‑1981, the order in question does not fall within the provisions of Order XVII, rule 3 C. P. C. which makes it imperative for the Court to decide the case forthwith. In his view if the case was adjourned to some future date the trial Court ought to have granted the appellant further time to adduce his evidence. In the second instance he maintained that the learned District Judge's failure to decide the case on the same day has violated the mandatory provisions of Order XVII, rule 3, C. P. C. In his estimation Order XVII, rule 3, C. P. C. makes it imperative for the Court to decide the case on the same day and posting the case to a future date is not permissible. Thus, the order being illegal is to be discharged.

6. In order to appreciate the arguments advanced by the learned counsel it is necessary to reproduce Order XVII> rule 3> C. P. C. which reads as under :‑ " Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witness, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. It may be observed that this rule is only applicable to a case where time has been granted to a party, at his instance, to produce evidence, or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which time has been granted. In the case before us the appellants, at their instance, were allowed several opportunities to produce their evidence; but they failed to do so. Thus, Order XVII, rule 3, C. P. C. is fully attracted in this case.

7. The contention of the learned counsel for the appellant what "proceed to decide the case forthwith" means to decide the case on the same day, does not appear to be correct. In Ordinary dictionary meaning `forthwith" means "within a reasonable time". In Osborn's Dictionary "forthwith" means "as soon as reasonably can be". In Webster's Dictionary, "forthwith" means, without delay hence within a reasonable time". In Black's Law Dictionary "forthwith" means as under "Immediately; without delay, hence within a reasonable time under the circumstances of the case promptly and with reasonable dispatch within such time as to permit that which is to be done, to be done lawfully and according to the practical and ordinary course of things to be performed or accomplished." According to Wharton Law Lexicon, at p. 431, 'forthwith' means as under :‑‑ "When a statute or rule of Court requires an act to be done forthwith it means that the act is to be done within a reasonable time having regard to the object of the provision and the circum stances of the case."

8. Therefore, to us the word "forthwith" does not mean on the same day. The only reasonable meaning of this word in the context of Order XVII, rule 3, C. P. C. is that the Court should proceed to decide the suit within reasonable time under the circumstances of the case. No doubt in Bahadar Shah and others v. Sharaf Major and others (P L D 1967 Lah. 154) and Industrial .Sales and Services, Karachi and another v. Archifar Opel Laboratories Ltd., Karachi (P L D 1969 Kar. 418) it was held that by the words "decide the case forthwith" it means that the Court must decide the case on the same day and the Court cannot adjourn the hearing to some other date and then purport to decide it under this rule.

9. The view expressed in the above cases, with due reference to the Judges who decided these cases, to us, is not in accordance with law and therefore is to be ignored. Our finding gets support in Maulvi Abdul Aziz Khan v. Mst. Shah Johan Begum and ? others (P L D 1971 S C 434). It has been observed is that case that the word "forthwith" does not mean on the same day, The reasonable meaning of this word in the context of Order XVII, rule 3, C. P. C. is that the Court should proceed to decide the suit within reasonable time under the circumstances of the case.' For the view we have taken in the matter we are satisfied that the trial Court was justified in adjourning the case for arguments‑to enable it to proceed with the suit forthwith. We, therefore, find no fault with the order of the trial Court and are satisfied that this is perfectly a legal order. There is, therefore, no force in this appeal which stands dismissed with costs. S. Q. Appeal dismissed