P L D 1988 Lahore 183 (PLP)

This appeal has arisen out of a suit brought by the appellant, Muhammad Hussain who has since died and is represented by his legal heirs, Najmul Hasan Najmi and others. One of his legal heirs, namely, Farrukh Hussain has not come forward as a legal representative of Muhammad Hussain and has, therefore, been implead as respondent No.4. The said suit was filed against respondents Nos.1 to 3, Akram Beg and others. Onus of the only issue framed in the suit was placed on respondents Nos.l to 3, hereinafter referred to as the respondents. One of the dates fixed for production of evidence by the respondents was 15th October, 1975, but as their evidence was not present on the said date, their case was closed under Order XVII, rule 3 of the Code of Civil Procedure and the suit decreed after recording evidence of the appellant which was confined to his own statement. Respondents, therefore, went in appeal before an Additional District Judge. View taken by the learned Additional District Judge was that since the case was not adjourned to the said date at the request of the respondents, their evidence could not be closed. He, accordingly, accepted the appeal, set aside the judgment and decree passed by the learned trial Court and remanded the suit to the learned Civil Judge for fresh decision, after giving opportunity to both, the parties to produce evidence. This appeal is directed against the order of remand passed by the learned Additional District Judge.'

2. It was contended by learned counsel for the appellant that before 15th October; 1975, on another occasion, that is, on 2nd July, 1975, the respondents had prayed for adjournment to produce evidence which was allowed on payment of Rs.50 as costs, and, therefore, the learned Civil Judge was justified in closing their evidence under Order XVII, rule 3 of the Code of Civil Procedure.

3. It is true that on 2nd July, 1975 the case was adjourned to 4th September, 1975 for evidence of the respondents, at their request and on payment of costs, but their evidence was not closed on 4th September, 1975 and instead the case was adjourned to 15th October, 1975 by means of the following order: ‑ This order reveals that on 4th September, 1975, the case was adjourned' to 15th, October, 1975 at the request of learned counsel for the parties, without making any mention of the availability or otherwise of the respondents evidence on the said date, that is, 4th September, 1975. Since 15th October, 1975 was not fixed for the evidence of the respondents, at their request alone, their evidence could not be closed as done by the learned Civil Judge. In my opinion the request contemplated by Order XVII, rule 3 of the Code of Civil Procedure, is not joint request of the parties, but the request of defaulting party only. In taking this view I am fortified by Syed Tasleem Ahmad Shah v. Sajawal Khan etc. 1985 S C M R 585 in which adjournment was sought by a party and was not objected to by the other. It was held by the Supreme Court that if a party does not oppose request for adjournment made by the other, it does not amount to request B for adjournment by the former, for the purpose of Order XVII, rule 3 of the Code of Civil Procedure. It was also observed by a Division Bench of the Peshawar High Court in Allied Bank of Pakistan Ltd. v. Abdur Rehman Khan and 2 others 1986 C L C 3021 (Peshawar) that provisions of Order XVII, rule 3, are penal in nature and C should, therefore, be construed strictly. As for the request made by the respondents on 2nd July, 1975 for adjournment of the case for their evidence, that could not constitute basis for the closure of their evidence on a date other than the one fixed at their request, D especially when the request was not followed by their repeated requests for the purpose. It was frankly admitted by learned counsel for the, appellants that there is no authority for the proposition that a joint request for adjournment could be made use of for proceeding against f one of the parties, under rule 3 of Order XVII. 4.???????????? It is also noteworthy that in this case the joint request was not with regard to the production of evidence by the respondents. In the relevant order, there is no mention of the presence or otherwise) of their evidence. At the end of the order, it was added by learned' Civil Judge that no further opportunity would be given. His order in this behalf is vague inasmuch as it is not clear whether any further accommodation will not be allowed to the counsel for the parties or, no further opportunity for leading evidence would be given to the respondents or the parties. Possibility of the parties' counsel seeking adjournment on the said date notwithstanding the presence of the respondents' evidence cannot be ruled out. Be that as it may, it cannot be said that on that date the evidence of the respondents was not present and they requested for adjournment to produce evidence on 15th October, 1987.

5. For the reasons given above, I agree with the learned Additional District Judge that the respondents' evidence could not be closed on 15th October, 1987.

6. I also feel that the respondents (defendants) did not have proper opportunity to cross‑examine the plaintiff when he suddenly jumped into the witness‑box after the closure of the case of the respondents because the date on which his statement was recorded 44 was not fixed for the evidence of the plaintiff. ????????? 7.???? In result, I hold that the order of remand passed by the learned Additional District Judge does not call for any interference. This appeal is, therefore, dismissed with no order as to costs. M.B.A./M‑519/L???????????????????????????????????????????????????????????????????? Appeal dismissed.