P L D 1975 Lahore 385 (PLP)

This appeal is directed against the judgment and decree passed by the learned District Judge, Mianwali, on 4-12-1963, affirming the judgment: and decree passed by the learned trial Court, whereby the suit of the. plaintiff-appellant was dismissed.

2. The facts of the case, as the record shows, are that the case was, adjourned to 5-9-1963 after the issues were framed by the learned trial: Court. On the said date the evidence of the plaintiff was not present. The learned counsel appearing on behalf of the plaintiff-appellant requested the Court for adjournment of the case on the ground that copies of the necessary revenue documents had not yet been made available and since they were necessary to be produced in evidence, therefore, some further time may be granted to him. This plea, however, was not accepted to be genuine by the learned trial Court on the ground that already sufficient time had been given to the plaintiff in this behalf. As such the suit was dismissed under Order XVII, rule 3, C. P. C.

3. It has been contended that the provision as relied upon by both the Courts below for dismissing the suit of the appellant cannot be attracted to the facts of the present case. Rule 1 of Order XVII, C. P. C. provides that the Court may, if sufficient cause is shown at any stage of the suit, grant time to the parties or to any of them and may, from time to time, adjourn, the hearing of the suit. Rule 3 of the said Order provides that where any party to the suit to whom time has been granted fails to produce his evidence or to cause 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.. In the present case, it in evident, as mentioned above, that no time was granted by the Court at the instance of the appellant to produce evidence. However, it was pleaded on behalf of the plaintiff-appellant that since copies of the necessary revenue documents had not been made available, therefore, the hearing of the case may be adjourned. The learned trial Court as well as the learned lower appellate Court, both, have found this plea to be insufficient for the adjournment of the case. The suit in question is for a declaration that the plaintiff had acquired ownership rights in the land measuring 449 kanals by adverse possession and the sale of the said land in favour of defendant No. 1 was ineffective as far his rights were concerned. It was prayed in the alternative that possession of the land may be given by pre-emption to the plaintiff. In this view of the matter, copies of the relevant revenue record were necessary to be produced on the file. The learned Courts below should have examined as to why the said copies had not been made available as yet and as to whether it was really due to the fault of the appellant that they had not been made available. If the fault did not lie with the appellant, then it means that sufficient cause had been shown for adjournment of the case. It is admitted that it was the first date for the production of the evidence of the parties. As such the case was not adjourned to the said date at the instance of the appellant. The provision as contained in rule 3 of Order XVII, C. P. C. applies to the cases where the case has been adjourned at the instance of a particular party and the said. party fails to produce evidence or to cause attendance of his witnesses or to perform any other act necessary for the further progress of the suit, for which the time was granted. Unless the three conditions, as mentioned in the said provision, are present no action is called for under the said provision of law. In the present case no such adjournment was granted at the A instance of the appellant for the production of his evidence. It was, as mentioned above, the first date fixed for the purpose of producing evidence. If the appellant had failed to produce evidence then sufficiency or otherwise of the cause as shown by him in this behalf was to be examined and thereafter necessary action was to be taken under the relevant provision of law. I am, however, of the view that keeping in view the nature of the suit production of the copies of the relevant revenue record was essential in order to make out a case.

4. It has been held in Abdul Majid v. Wali Muhammad P L D 1963 Kar. 171 that the provision as contained in rule 3 of Order XVII cannot be applied unless time has been granted to a party at his instance to do one or other of the three things mentioned in the rule. In that case it was observed that the applicant before the High Court had not taken time to do any of the three things mentioned in the rule or perform any other act necessary to the further progress of the suit. It was held that Order XVII, rule 3 was a stringent provision of law, and as such it should not have been applied unless the circumstances of the case called for. 'The order in revision before the High Court was, therefore, set aside. Similar view was taken in Abdul Shakoor v. Abdul Rasool P L D 1963 Kar.

356. It was held that the distinction between rules 2 and 3 of Order XVII, C. P. C., is that while rule 2 applies to the hearing adjourned at the instance of the Court and rule 3 to the hearing adjourned at the instance of the party to whom, time has been allowed to do some act to further the progress of the suit, but who has defaulted. It has also been held in Bahadar Shah and others v. Sharaf Major and others P L D 1967 Lah. 154 that the provision as contained in rule 3 is permissive and not mandatory, it is penal in nature awl has to be strictly construed. The' stringent provision thereof should be used only in exceptional cases, and l further that ordinary powers under this rule should not be exercised unless case of both sides is on record and the arguments have been in the main heard. It was also observed that the rule can be pressed into service when it is possible to decide the case on merits and it, there fore, cannot apply when the suit is at a preliminary stage. The decision under this rule must be on consideration of such material on the record as is necessary. In the present case, it is admitted on record that neither of the parties had adduced any oral or documentary evidence and, as such, there was no necessary material as far the issues in question were concerned.

5. Their Lordship of the Supreme Court in Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others P L D 1971 S C 434 have held that rule 3 of Order XVII applies 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 the time was granted. In that case, appellant before the Supreme Court was granted time to produce his evidence at his own res ponsibility. It was held that the provision as contained in Order XVII, rule 3, C. P. C. was attracted to the facts of the case. In the present case such position does not exit. The first date as fixed by the trial Court for the Court for the purpose of producing evidence of the parties was 5th of September 1963, and, as mentioned above, on the said date the Court was requested to adjourn the case on the ground that the copies of the necessary revenue record had not been made available. The Court, however, instead, proceeded to decide the case under Order XVII, rule

3. The above discussion would show that since the adjournment had not been granted at the instance of the appellant. therefore, the provision of, rule 3 was not applicable. The judgment and decree, therefore, as passed by the learned lower Court as well as the learned 'lower appellate Court, against the appellant, cannot be maintained. The same are hereby set aside.

6. For the aforesaid reasons the appeal is accepted with costs and the case is remanded to the learned trial Court for decision in accordance with law and in the light of the observations made above, after hearing the parties. K. B. A. Appeal accepted.