P L D 1971 Lahore 143 (PLP)

(2) In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occa sioned by the adjournment: Provided that, when the hearing of evidence has once begun, the hearing of the suit shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing beyond the following day to be necessary for reasons to, be recorded. (3) Where sufficient cause is not shown for the grant of an adjournment under sub‑rule (1) the Court shall proceed with the suit forthwith. Order XVII, rule 3:‑ Court may proceed (3) Where any party to a suit to whom notwithstanding either time has been granted fails to produce party fails to produce his evidence, or to cause the attendance of evidence etc. 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 forth with." A comparison of the above rules will show that under sub rule (3) of rule 1 of Order XVII, what a Court can do when an adjournment is not granted is to "proceed with the suit forthwith". While in rule 3 of Order XVII, the Court is to "proceed to decide the suit forthwith". This shows that in Order XVII, rule 3, decision is to be on the merits of the case on the basis of the material till then produced in evidence. While under sub‑rule (3) of rule I of Order XVII, it is not the decision which is to be given forth with, but further steps in the progress of the suit are to be taken. As for example if some witnesses had been allowed to be produced, who are not being produced on the relevant date, then the Court may refuse to adjourn the case for production of those witnesses over again and may ask the party concerned to produce any other evidence which may be present on that date or to himself appear in the witness‑box. Similarly, if in this way the plaintiff's evidence is closed, the Court may proceed to record the defendant's rebuttal evidence and attend to his case and position. Applying this formula to the facts and circumstances of the present case, it will appear that there were two issues in the case, namely, of valuation and limitation. In the very nature of things, after refusing to adjourn the case, the next step to be taken "to proceed with the suit forthwith", was to attend to the matter of valuation and find as to whether the valuation for purposes of court‑fee and jurisdiction was correct or not. If it was not correct, then the Court should have first got that corrected and if any additional court‑fee was required he should have asked the plaintiffs to make good the deficiency of the same under Order VII, rule 11 read with sections 148 and 149 of the C. P. C., and it was thereafter that the question of limitation could have been attended to. If the Court had proceeded in this way, it would have realised that there was a possibility of its order being different which may have affected its discretion even in the matter of adjournment. It will thus appear that the procedure adopted by the learned Civil Judge cannot be justified either under Order XVII, rule 1 (3) or Order XVII, rule

3. As a matter of fact, the learned counsel for the appellants frankly conceded that rule 3 of Order XVII had no application to the facts and circumstances of the case and that he would invoke only sub rule (3) of rule 1 of Order XVII. As I have held earlier even, that rule has not been properly applied and, therefore, the judgments and orders of the learned trial Court cannot be maintained on any count. Another illegality which was committed by the learned Civil Judge was that he read into evidence certain sale‑deeds on the record which have neither been tendered nor produced and nor proved by anybody. The Court could not take into evidence the said documents when it had not allowed the plaintiff to produce any evidence and at the same time had not called upon the defendants to lead any evidence whatsoever. Such a course of action on the part of the learned Civil Judge is not warranted by any of the provisions hereinbefore quoted.

6. The upshot of the above discussion is that ‑the appeals have no merits and are liable to be dismissed which I hereby do. The parties shall bear their own costs throughout. A. E. Appeals dismissed.