2022 PLP 319 (CLC)

ZULFIQAR ALI SANGI, J.

Through this Civil Revision Application the applicant assailed the judgment and Decree dated 19.08.2019, passed by the learned 1st Senior Civil Judge, Larkana, in F.C Suit No.83/2019 re: Zai-ul-Haque v. Muhammad Murad whereby he has dismissed the Suit of the applicant under Order XVII, Rule 3, C.P.C., and also assailed the judgment dated 06.11.2019 and decree dated 8.11.2019 passed by learned District Judge, Larkana, in Civil Appeal No.112/2019 re: Zai-ul-Haque v. Muhammad Murad and others, wherein the appeal filed by the appellant was also dismissed.

2. The brief facts of the case are that the applicant/plaintiff filed suit before the Senior Civil Judge-1, Larkana for Declaration, Specific Performance of Contract and Permanent Injunction with the following prayers:- "a) That this Honourable Court may be pleased to declare the plaintiff and defendant as bona fide, lawful and legal exchanger of the suit property in terms of agreement dated 18.08.2018. b) That this Honourable Court may be pleased to direct defendant No.1 to fulfill the terms and conditions of agreement dated 18.08.2018 and execute registered sale deed of sale in favour of plaintiff in respect of suit property. c) That this Honourable Court may be pleased to grant permanent injunction to the plaintiff against defendant No.1 restraining him not to sell out suit property in favour of anybody else in any manner directly or indirectly except due course of law. d) To award costs of this suit to plaintiff. e) Any other relief available under the circumstances may also be granted to plaintiff."

3. After admission of suit, notices were issued to the defendants and the defendant No.1 appeared and filed adjournment application and time was allowed to file written statement but he did not appear to pursue the matter whereas defendant No.3 filed his written statement. The defendants Nos.1, 2, 4 to 6 were debarred from filing their written statements vide order dated 07.05.2019, the trial Court held that since the suit had not been contested by any of the defendants, therefore, there is no need to fix the matter for framing of issues and directed the applicant/plaintiff to lead his evidence to prove the claim. Trial court found that the applicant party is not producing the evidence therefore passed the impugned judgment and the decree dated: 19-08-2019.

4. The applicant challenged the judgment and decree dated 19-08-2019 passed by the Senior Civil Judge-I, Larkana before the District Judge Larkana and the same was also dismissed after affording the opportunity of hearing to the parties vide the impugned judgment and decree dated: 06-11-2019 and 08-11-2019. Both the impugned judgments and decrees are challenged by the applicant through this Civil Revision before this court.

5. Learned counsel for the applicant submits that impugned Judgment and Decree passed by trial court is based on surmises and conjectures and without application of judicious mind; that it is surprising that the learned trial court did not frame issues from the pleadings of the parties, but directed the plaintiff/ applicant to lead his evidence; that trial court failed to consider that valuable interest of the applicant is involved in the matter therefore, it could only be decided on merits after recording evidence of the parties; that on the date of hearing plaintiff/ applicant was present in the court but the respondent No.1 did not appear before the trial court and on 19.8.2019 the advocate for the applicant submitted adjournment application, but the same application was taken on record by presiding officer and learned trail court dismissed the same and also dismissed the suit; that on 6.8.2019, matter was fixed for arguments on application under Order I, Rule 10, C.P.C., same was heard and dismissed on very same day and the matter was adjourned for the evidence; that on 19.8.2019, the adjournment application was filed and the same was dismissed so also the suit was dismissed without affording any further opportunity to the applicant to produced his evidence; that on each and every date of hearing applicant and his counsel were attending the trial court punctually but on the contrary respondent No.1 did not attend the learned trial court; that learned trial court had even not applied its judicious mind and did not follow principle of law and provision of law as required by Order XVII, Rule 3, C.P.C.; that the appellate court in the impugned judgment and decree has not applied its independent mind while deciding the appeal under section 96, C.P.C., to check the findings of the learned trial court, by framing the points for determination as required under Order XLI, Rule 31, C.P.C.; that the impugned judgment and decree of the learned appellate court is devoid of legal merits, has got no legal room, despite the clear provisions of law contained in Order XLI, Rules 30 and 31 of C.P.C.; that the learned appellate court was to write a judgment in accordance with the said Order XLI, Rules 30 and 31 of C.P.C. instead of writing a formal impugned judgment which is without any legal sanctity and merits, and is accordingly, liable to be set aside; that the case of the applicant is liable to be decided on merits after recording of the evidence, hence the case deserves to be remanded; that the case of the applicant does not fall under Order XVII, Rule 3, C.P.C., and the trial court hurriedly buried the justice without affording a proper opportunity to the plaintiff / applicant to come out with his evidence, and the learned appellate Court has also endorsed the said judgment and Decree of the learned trial Court putting an stamp of confirmation in a very cursory and whimsical manner; that in order to foster the ends of justice, the case of the applicant merits to be remanded to learned trial court for deciding the same on merits after recording the evidence of the applicant. In support of his contention he relied upon the Mst. Nazima Batool alias Nazim Batool v. Sabar Ali Shah (2004 CLC 1175), Nadeem Ahmed v. Altaf Hussain and others (2014 MLD 921).

6. On the other hand, learned counsel for the respondent No.1, has contended that several opportunities were given to the applicant but he fail to appear before the Court; that diary dated 10.6.2019 shows last chance was given and on 18.6.2019 again last chance was given to the applicant as such trial court has rightly dismissed the suit and the appeal has also been dismissed rightly. He further submitted that Order XLI, Rule 31 is not applicable in the present case as no evidence was recorded by the trial Court. In support of his contentions he relied upon the case of Rana Tanveer Khan v.Naseer-ud-Din and others (2015 SCMR 1401), Moon Enterpriser CNG Station Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manger, Rawalpindi and another (2020 SCMR 300) and Sher Muhammad through legal heirs and 9 others v. Messrs Sui Southern Gas Company Ltd. (2016 YLR 1321).

7. I have heard learned counsel of the parties and considered their arguments advanced by them and have gone through the material placed before the Court so also the relevant case law including that cited at the bar.

8. The case of applicant before this court is based on the two points (1) Whether the Order XVII, Rule 3, C.P.C., is applicable in the present case-?, and (2) Whether the judgment of the Appellate Court is in violation of Order XLI, Rule 31, C.P.C.? As regards to the point No.1 in respect of the applicability of the Order XVII, Rule 3, C.P.C. in the present case it is necessary to re-produced the same which is as under:- ORDER XVII .1.(1),(2) . 2. .

3. Court may proceed not withstanding 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 such default, proceed to decide the suit forthwith

9. Prima facie, the bare reading of the above provision makes it clear that applicability of above provision is subject to two conditions i.e:- i) time must have been granted for a specificthing, necessary for further progress of suit; and ii) there must be a failure in performance of such duty / obligation, for which time was specifically granted / allowed;

10. However, since the ultimate effect of the above provision is that of 'decide the suit forthwith' which, in other words, amounts to a 'penal action' therefore, interpretation of the above provision has, now, been settled by the Honourable Supreme Court in its recent judgment, recorded in the case of Moon Enterpriser CNG Station Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manger, Rawalpindi and another (2020 SCMR 300) as follows:- "

6. A bare reading of Order XVII, Rule 3, C.P.C. and case law cited above clearly shows that for Order XVII, Rule 3, C.P.C. to apply and the right of a party to produce evidence to be closed, the following conditions must have been met:- i) at the request of a party to the suit for the purpose of adducing evidence, time must have been granted with a specific warning that said opportunity will be the last and failure to adduce evidence would lead to closure of the right to produce evidence; and ii) the same party on the date which was fixed as last opportunity fails to produce its evidence.

11. The co-existence of above two conditions, it was further stressed in the said case, shall leave the Courts with no option but to enforce its order unfailingly and unscrupulously so as to maintain confidence of the litigants in the court systems. The relevant portion reads as under:- "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 reaffirms the majesty of the law but also put a check on the trend of seeking multiple adjournments of 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 list 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 (Akhtri 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 practice must be discontinued, forthwith.

12. It is observed that before the trial court the defendants 1, 2, 5 and 6 were called absent on 07-05-2019 and only defendant No.3 filed written statement and 4 had filed reply to the show-cause notice, therefore, the defendants Nos. 1, 2, 5 and 6 were debarred being declared ex-parte. Since none of the defendants filed the written statement to negate the claim of the applicant/plaintiff therefore the trial court decided to fix the matter for recording evidence of the applicant/plaintiff directly without framing the issues and the matter was fixed for the evidence of applicant/plaintiff on 16.05.2019 and on the said date, learned Advocate for applicant/plaintiff filed adjournment application on the ground that witness was out of city, which was allowed and trial court adjourned the matter to 24.05.2019. On said date again adjournment application was filed with similar ground which was granted by showing leniency and matter was adjourned to 10.06.2019, again on said date adjournment application was moved on similar ground which was also granted with last chance by the trial court and matter was adjourned to 18.06.2019. On 18.06.2019 again adjournment application was filed on similar ground that his witness was out of city, in the interest of justice same was granted as last and final chance and matter was adjourned to 25.06.2019, however, on 25-06-2019 due to Bar Strike work was suspended, therefore, matter was adjourned for 29.06.2019 for the evidence of applicant/plaintiff side. It is further observed that on 29.06.2019, applicant/plaintiff not produced the evidence but his counsel had filed an application under Order I, Rule 10, C.P.C. and on such application notice was issued to other side and matter was adjourned to 06.08.2019, on 06-08-2019 arguments were heard and said application was dismissed and the matter was fixed for 19.08.2019 for evidence of applicant/plaintiff side, however, such adjournment was neither granted as 'last chance' nor there was any 'warning' that failure would follow legal consequences. No doubt, there were granted many opportunities to the applicant/plaintiff in past but the adjournment, so granted on last date, was not granted as 'last opportunity' nor it was couple with 'requisite warning' therefore, 'penal action' was / is not advisable. I would add that failure in producing the evidence, normally, reflects on the claim of failing party, therefore, such action is to be interpreted as 'penal action' hence co-existence of said two conditions have been insisted by the Honourable Supreme Court before proceedings within meaning of Order XVII, Rule 3, C.P.C.

13. As regards to the legal aspect which makes the judgment of the learned trial court as not tenable and relates to the issue, involved i.e application of the Order XVII, Rule 3, C.P.C. I would insist that provision of Order XVII, Rule 3, C.P.C., as already discussed, can only be invoked when two conditions co-exist. The same, though already reproduced, are reproduced hereunder to make the point clear which are:- i) at the request of a party to the suit for the purpose of adducing evidence, time must have been granted with a specific warning that said opportunity will be the last and failure to adduce evidence would lead to closure of the right to produce evidence; and ii) the same party on the date which was fixed as last opportunity fails to produce its evidence.

14. It is a basic principle of civil law, that evidence is required in support of the issues as framed and not the pleadings, because these are only issues and not pleadings which guide the parties in adducing the evidence. I would say that stage of 'adducing evidence' comes only when the parties are at dispute on question of law or fact which (disputed), legally, is known as 'issues' but when parties are not on 'disputes/issues' then the course, to be adopted by the Courts, is provided under Order XV of the Code.

15. Here, referral to relevant portion of the judgment of the trial Court shall make things clear which reads as:- "

3. Following admission of suit the summons issued to defendants through ordinary mode resultantly defendant No. 1 appeared and moved adjournment application seeking time to file written statement but then he disappeared and never turned to pursue this matter though defendant No.3 filed his written statement which was taken on record whereas rest of the defendants were debarred through order dated: 07-05-2019. Since there were no divergent pleadings of the parties as defendant No.3 had not contested this suit and others were debarred hence this court directed to plaintiff to lead his evidence in order to prove his claim."

16. It is surprising that when there was no divergent pleadings i.e parties were not on dispute/issue then what the plaintiff was directed to prove by leading evidence, particularly without putting him on notice as to what he was to prove. An ex-parte proof in such eventuality may be demanded so as to ensure the settled principle, as held in the case reported as East and West Steamship Co. v. Queensland Insurance Co. (PLD 1963 SC 663), that: 'There can be no doubt of the duty of the Court to ensure, even when proceeding ex parte, that its decision is in accordance with the facts, which should be ascertained with as much care as is possible in the absence of any contesting party.'

17. The demand to lead evidence must be after notice to the parties to what he / they are to prove and disprove. The above legal position also makes me of the view that there is marked difference between Order XV and Order XVII of the Code which the Court must appreciate.

18. In view of above legal position, I am of the clear view that there remains no need to discuss the judgment of the appellate Court with reference to non-framing of the points for determination because the judgment of trial Court, prima facie, is not meeting the required criterion for proceedings within meaning of Order XVII, Rule 3, C.P.C. In consequence to what has been discussed above, the judgment and decree dated: 19-08-2019 passed by the Senior Civil Judge-I Larkana in F.C Suit No. 83 of 2019 and the judgment dated: 06-11-2019 and decree dated: 08-11-2019 passed by the District Judge Larkana in Civil Appeal No. 112 of 2019 are hereby set-aside and matter is remanded back to the learned trial Court for deciding strictly in accordance with law.

19. While parting, I feel it quite necessary to add that the lower Courts must keep in view the given criterion as well fact that once the last opportunity is given the same must be with warning that failure of party, obtained time for specific purpose, shall face legal consequence on his / her failure on given date. However, if for any genuine reason the time is granted the same must either be with same procedure or as the Court, otherwise, decides.

20. Civil Revision Application is disposed of in the above terms MH/Z-14/Sindh Case remanded.