P L D 1973 Lahore 391 (PLP)

This judgment will dispose of two revision petitions (being Civil Revisions Nos. 234 and 235 of 1968) in which common question of law and fact are involved.

2. S. Muhammad Din (since died) and four others brought a suit against the Lahore Municipal Corporation for recovery of Rs. 1,19,070.00 as damages for mesne profits or compensation for use and occupation of land (details of which appear in the plaint) for a period of three years ending 31st of December 1964, at the rate of Rs. 50.00 per kanal per mensem. After part evidence of the plaintiffs had been recorded, the defendant defaulted in appearance on the 30th of January 1967 and was proceeded against ex parte. On the 2nd of March 1967, state ments of counsel for the parties were recorded in respect of the application filed on behalf of the defendant for setting aside ex parte proceedings. Mr. Fayyaz Hussain Qadri, Advocate, counsel for the defendant stated the statement of Muhammad Ismail P. W. 6 (examined ex parte) may be read in evidence; I do not want to cross‑examine the witness. The plaintiffs counsel stated I have no objection to setting aside the ex parte proceedings on the said condition: Consequently, the trial Court passed the following order :‑ The ex parte proceedings are set aside as per statements of learned counsel for the parties except that the statement of P. W. 6 Ismail will remain on the record as it is. The plaintiff's evidence concluded the same day and the case was adjourned for defendant's evidence to the 10th of May 1967, with the further direction that the defendant will produce its evidence, on the said date, on its own responsibility. When the suit was called on for hearing on the 10th of May 1967, the defendant again failed to appear and ex parte proceedings were ordered against it. The Court adjourned the suit to the 29th of May 1967, for arguments. The application for setting aside the ex parte proceedings was taken up on the 15th of June 1967, when counsel for the plaintiffs made a statement to the effect that the ex parte proceedings dated the 10th of May 1967 may be set aside on payment of conditional costs. The trial Court passed an order, which rendered in English reads as under :‑-- On payment of conditional costs of Rs. 30.00, the ex parte proceedings of 10th May 1967 are set aside. To come up for evidence of the defendant on the 24th of October 1967. The defendant on that date should produce its entire evidence on its own responsibility. If it summons some witness (through Court), it (the defendant) will be responsible for service. , It can obtain dasti summons. On the 24th of October 1967, the defendant defaulted for the third time. Ch. Meraj Din, Advocate, appeared for counsel for the defendant and stated 'that the defendant's counsel has gone to Montgomery and there is no evidence on behalf of the defendant'. The Court finding that even costs awarded to the plaintiffs on the previous date had not been paid and there was no excuse for the defendant's failure to produce its evidence, closed the defendant's case under Order XVII, rule 3 of the Code of Civil Procedure. The case was accordingly adjourned for arguments to the 21st of November 1967. Civil Revision No. 235 of 1968 is directed against this order.

3. On the 6th of November 1971, an application was moved under order XVIII read with section 151, C. P. C. on behalf of the defendant for permission to adduce additional evidence. The application was dismissed on the 10th of January 1968, holding that the circumstances of the case did not justify the grant of permission sought by the defendant. It is u this order which forms the subject‑matter of Civil Revision No. 234 of 1968.

4. It may be observed that the revision petitions were filed in this Court on the 17th of April 1968 and they have been pending for over four years. The legal representatives of S. Muhammad Din deceased (plaintiff) have not been impleaded as parties despite the fact that they had been brought on the record of the trial Court on the 13th of May 1.965, as is evidence from the certified copies of the impugned orders appended to the revision petitions. There is no explanation why the said legal representatives had been left out. There can be no doubt regarding Court's power to summon all the parties, but the question is why should that power be exercised for a negligent party. The defendant is not entitled to any indulgence and it is a fit case in which this Court should decline to inspect the records of the case of the subordinate Court.

5. Since a full argument has been addressed on merits of the two revision petitions, the same may also be examined. Learned counsel for the defendant has contended that once the .ex parte proceedings of 10th May 1967 had been set aside on award of costs to the plaintiffs, the adjournment granted to .the defendant for production of evidence was in the nature of a general adjournment and not an adjournment at the instance of the defendant and as such the case is not covered by Order XVII, rule 3, C. P. C. and the consequent penal order passed on the 74th of October 1967 is a case of excess of jurisdiction. He has relied on some observations in Abdul Shakoor v. Abdul Basool (P L D 1963 Kar. 356). He has also referred to Tasiruddin Brothers v. Faizullah Gungjee & Co. Ltd. (P L D 1966 Dacca 145), and has argued with vehemence that unless it be proved that the adjournment has been granted on the asking of a particular party, the said party cannot be visited with penalty in case an adjournment is occasioned on the sub sequent date fixed. Learned counsel for the defendant feebly attempted to argue that the costs awarded were not conditional. However, when reference was made to the record and it was shown to him that the order in question starts with the words "basharat adaiegi harjana," he did not press the argument further. Another argument addressed at the bar with respect to appearance .of Ch. Meraj Din, Advocate, for counsel for the defendant on the 24th of October 1967 may also be noticed. It was contended that it is not known who this Ch. Meraj Din is. Counsel had overlooked the presence marked on the record and was merely relying on the opening words of the order where the word 'Advocate' does not find mention after the name of Ch. Meraj Din. The presence noted by the trial Court clearly describes Ch. Meraj Din as Advocate appearing for defendant's counsel. Faced with this situation, learned counsel had no satisfactory reply to give.

6. On behalf of the plaintiffs, it has been argued that even non‑payment of costs Is likely to entail penalties provided in Order XVII, rule 3, C. P. C. Bhaya Ram Bakhsh Singh v. Mahant Harkarangir and others (127 I C 27) was relied on Learned counsel has also referred to the admitting order (unreported) of 30th of June 1970 in Civil Appeal No. 209 of 1970 reported as Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (P L D 1971 S C 434). Their Lordships of the Supreme Court while granting leave to consider the question that the learned trial Court's order under Order XVII, rule 3, C. P. C. was illegal as it did not proceed to decide the suit forthwith, have repelled the plea of the appellant that he could not be blamed for non‑production of the evidence as he had already deposited the process fee and diet money for summoning his witnesses,' holding that the contention of the learned counsel had not impressed them and they were satisfied that the appellant had been negligent in conducting his case before the trial Court. It may incidentally be mentioned that even the second contention has not found favour with their Lordships of the Supreme Court and the view taken in Bahadar Shah and others v. Sharaf Major and others (P L D 1967 Lah. 154) has been reversed.

7. Rule 2 of Order XVII deals with procedure if parties fail to appear on any day to which the hearing of the suit is adjourned, while the opening words of rule 3 show that it covers cases where any party to a suit to whom time has been granted fails to produce its evidence or to cause the attendance of its witnesses or to perform any other act necessary to the further progress of the suit for which time has been allowed. The distinction between the two rules has been considered in various judgments of the superior Courts and the consensus of opinion has been that rule 3 comes into play when a party that has obtained an adjournment defaults in producing evidence or causing attendance of its witnesses or performing any other act necessary for further progress of the suit, while rule 2 pertains to cases of adjournment granted by the Court. The argument that after the ex parte proceedings had been set aside on the 15th of June 1967 the defendant was entitled to produce evidence to establish its defensive pleas and, therefore, it should be considered to be a general adjournment and not an adjournment sought by the defendant, is without merit. The reason is obvious. The entire conduct of the defendant has been greatly negligent and non‑co‑operative. The various orders passed on the order‑sheet show that the suit filed on the 20th of January 1965 did not make any substantial progress till the 30th of January 1967, when ex parte proceedings were recorded against the defendant for the first time. On the 2nd of March 1967 the said ex parte proceedings were set aside; the plaintiff closed their evidence and time was granted to the defendant to produce evidence on its own responsibility. This order saddling the defendant with the responsibility to produce its evidence has not been challenged before me to be without jurisdiction rather the defendant has not felt aggrieved by the said order in any respect. Now when the defendant had been specifically ordered to produce its evidence on its own responsibility as far back as the 2nd of March 1967 and the defendant again defaults on the adjourned hearing and subsequently makes an application for setting aside the ex parte proceedings and the Court again showing indulgence sets aside the ex parse proceedings on payment of conditional costs and adjourns the case enabling the defendant to produce its evidence on its own responsibility, it cannot be termed to be an adjourn ment as of right and of the nature of a routine or a general adjournment.

8. The trial Court was fully empowered to control its proceedings and to see that the suit is not permitted to drag on because of negligence of the defendant and viewed from that angle the order of the 15th of June 1967 was a proper, valid and legal order. The subsequent conduct of the defendant on the 24th of October 1967 is also greatly negligent. Counsel for the defendant was not present; conditional costs had not been paid; evidence had not been summoned through Court, nor was any witness present for being examined on the said adjourned hearing and this was the third default. Although a huge amount is involved in the suit and the policy of law is to lean towards adjudication of a cause on merit, the facts of the case before me do not warrant any such indulgence and if the Court has refused to further adjourn the case in exercise of its power under Order XVII, rule 3, C. P. C. the order cannot be dubbed as fanciful, arbitrary or capricious. There has been no illegal assumption of jurisdiction, refusal to exercise jurisdiction or irregular exercise thereof. Civil Revision No. 235 of 1968 is without merit and is dismissed with costs.

9. Now I take up the second revision petition, namely, Civil Revision No. 234 of 1968. The argument advanced is that under rule 2 of Order XVIII, C. P. C. as amended, by the Lahore High Court, there is no bar in the way of the trial Court to examine any witness if orders closing evidence have been passed by the Court under Order XVII, rule 3, C. P. C. Thai argument is misconceived. No rule of law or authority has been cited before me in support of the proposition canvassed that after the case has been closed under Order XVII, rule 3, C. P.C. by way of penalty, the party at fault can achieve the same object through the backdoor, invoking the inherent jurisdiction of the, Court under Explanation I (reproduced below) the Order XVIII rule 2, C. P. C., as added by the Lahore Court:‑-- Nothing in this rule shall affect the jurisdiction of the Court of its own accord or on the application of any party, for reasons to be recorded in writing, to direct any party to examine any witness at any stage The said provision is more of a rule of equity and as equity does not help the indolent, it cannot be successfully argued that because there is no bar to exercise that power the Court below has in any manner failed to exercise jurisdiction so vested in it. Civil Revision No. 234 also fails and is dismissed with costs. K. B. A.