2013 PLP 1615 (YLR)
Mst. SHAMIM ARA and another — Appellants Versus DISTRICT COORDINATOR through Officers and 4 others — Respondents
| Citation | 2013 PLP 1615 (YLR) |
| Forum / Court | Sindh |
| Bench Members | Abdul Rasool Memon, J |
| Parties | Mst. SHAMIM ARA and another — Appellants Versus DISTRICT COORDINATOR through Officers and 4 others — Respondents |
| Primary Law | Civil Procedure Code (V of 1908) |
Q1: What are the key laws and sections cited in 2013 PLP 1615 (YLR)?
This judgment primarily cites: Civil Procedure Code (V of 1908) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2013 PLP 1615 (YLR)?
The case was heard and decided by the Sindh bench comprising: Abdul Rasool Memon, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2013 PLP 1615 (YLR) (Mst. SHAMIM ARA and another — Appellants Versus DISTRICT COORDINATOR through Officers and 4 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Mumtaz Khan for Appellants.
- Mrs. Kausar Anwar Siddiqui for Respondent No. 5.
- Date of hearing: 5th March, 2013.
- 2. The appellants/plaintiffs filed Civil Suit No.273 of 2006 against the respondents for declaration, cancellation and permanent injunction. After service of the notices of the said suit the respondents Nos.3 and 5 filed their written statement. Thereafter, after framing of the issues on 25-1-2007 the matter was adjourned for 34 dates for evidence of appellants/plaintiffs but no one turned up to lead evidence on their behalf and consequently on 29-10-2008 and 21-2-2009 the costs were also awarded against them yet no evidence was led by the plaintiffs/appellants consequently the trial Court on 4-3-2013 rejected the adjournment application filed by the Advocate for plaintiffs/appellants and proceeded under Order XVII Rule 3, C.P.C.
- 3. Learned counsel for the appellants/plaintiffs has contended that Judgment and Decree passed by the trial Court is liable to be set aside because the case was adjourned due to strikes of Advocates in the court. According to him the court should have closed the side of the appellants/plaintiffs instead of proceeding under Order XVII Rule 3 C.P.C. He has further argued that the trial Court has not discussed the merits of the case while dismissing the suit under Order XVII, Rule 3, C.P.C. In support of his contention he has placed reliance on a case of N.-W.F.P/ PROVINCE through Collector Dera Ismail Khan and 2 others v. Dr. INAYATULLAH KHAN and 2 others (1990 CLC 1293).
- 5. I have given careful consideration to the arguments and minutely gone through the relevant papers on record. It is admitted fact that the suit was filed in the year 2006 and issues were framed on 25-1-2007 thereafter the matter was being adjourned on each and every date for the evidence of the plaintiffs/appellants. The said history of the case is shown in para-1, page-2 the Judgment of the trial Court and it has also been mentioned in the order that on 29-10-2010 and 21-2-2009 costs were also imposed upon the appellants/plaintiffs with direction to produce the evidence. The appellants/plaintiffs did not comply with the directions and warnings. Consequently the trial Court was compelled to reject the adjournment application filed by the appellants/plaintiffs. Not only this, but it also appears from the record that Advocate for the appellants/plaintiffs was inclined to write letter to the parties to withdraw his power. This prima facie shows that the plaintiffs/appellants have lost interest even by not remaining in touch with their advocate which shows negligence and laxity on their part. Law also favours who are vigilant and not indolent. No explanation has been brought on record that why they were not in contact with their advocate or not attending the court except that the matter was adjourned due to strikes of Advocates. This plea is not acceptable because this is not a matter of a single date of absence but regarding the absence of 34 dates. Rules and Regulations are framed for compliance and not for abrogation. In circumstances when many opportunities for recording the evidence were granted to the plaintiffs/appellants who failed to produce evidence, the trial Court proceeded under Order XVII Rule 3, C.P.C., closed the said and the said order of the trial Court was upheld by the appellate court. In similar circumstances in a case of FATEH SHER v. MUHAMMAD ZUBAIR (2003 SCMR 797) the Hon'ble Supreme Court refused to grant the leave to appeal. In the instant case plausible or good explanation has been brought on record that non-appearance of appellants or their witnesses was beyond their control or it was with any bona fide. The contention of learned counsel for the appellants/plaintiffs that trial Court did not decide the case on the basis of issues is also devoid of force for the reasons that burden lies upon the appellants/plaintiffs to prove their case positively, which they have failed to prove, even though the trial Court has discussed the material available on record issue-wise at the time of passing the Judgment under Order XVII Rule 3, C.P.C. The orders of trial Court and appellate court are justified and require no interference in second appeal, which is dismissed accordingly.
Headnotes / Summary
O.XVII, R.2 & 3
Suit was filed in the year 2006 and issues were framed on 25-1-2007 thereafter the matter was being adjourned on each and every date for evidence of the plaintiffs
Costs were also imposed upon the plaintiffs with the direction to produce the evidence
Plaintiffs did not comply with said direction and warnings
Court was compelled to reject the application for adjournment
Counsel for the plaintiff was inclined to write letter to the appellant to withdraw his power
Prima facie, plaintiffs had lost interest even by not remaining in touch with the counsel which showed negligence and laxity
Law favoured the vigilant and not indolent
No explanation was brought on record as to why plaintiffs were not in contact with the counsel or not attending the court
Rules and regulations were framed for compliance and not for abrogation
No plausible or good explanation was brought on record to suggest that non-appearance of the plaintiffs or their witnesses was beyond their control or was bona fide
Court discussed the material available on record issue-wise
Suit was rightly dismissed under O.XVII, R.3 of C.P.C. Fateh Sher v. Muhammad Zubair 2003 SCMR 797 rel.
Judgment & Decree
ABDUL RASOOL MEMON, J.
The appellants have assailed the judgment dated 4-3-2009 passed by the VIIIth Senior Civil Judge Karachi East in Suit No.273 of 2006 whereby suit of the appellants/ plaintiffs was dismissed under Order XVII, Rule 3, C.P.C. The said judgment and Decree were maintained in Civil Appeal No.53 of 2009, therefore, both the aforesaid judgments have been impugned in this appeal.
2. The appellants/plaintiffs filed Civil Suit No.273 of 2006 against the respondents for declaration, cancellation and permanent injunction. After service of the notices of the said suit the respondents Nos.3 and 5 filed their written statement. Thereafter, after framing of the issues on 25-1-2007 the matter was adjourned for 34 dates for evidence of appellants/plaintiffs but no one turned up to lead evidence on their behalf and consequently on 29-10-2008 and 21-2-2009 the costs were also awarded against them yet no evidence was led by the plaintiffs/appellants consequently the trial Court on 4-3-2013 rejected the adjournment application filed by the Advocate for plaintiffs/appellants and proceeded under Order XVII Rule 3, C.P.C.
3. Learned counsel for the appellants/plaintiffs has contended that Judgment and Decree passed by the trial Court is liable to be set aside because the case was adjourned due to strikes of Advocates in the court. According to him the court should have closed the side of the appellants/plaintiffs instead of proceeding under Order XVII Rule 3 C.P.C. He has further argued that the trial Court has not discussed the merits of the case while dismissing the suit under Order XVII, Rule 3, C.P.C. In support of his contention he has placed reliance on a case of N.-W.F.P/ PROVINCE through Collector Dera Ismail Khan and 2 others v. Dr. INAYATULLAH KHAN and 2 others (1990 CLC 1293).
4. Learned counsel for the respondent No.5 has argued that the appellants/ plaintiffs were given 34 opportunities and so also directions, warnings and ultimately the costs were also imposed against the appellants/plaintiffs for producing the evidence but they did not lead evidence, therefore, the trial Court was justified in deciding the matter under Order XVII, Rule 3, C.P.C. In support of his contention he has placed reliance on the case reported as 2003 SCMR 797 and 2000 SCMR 1135.
5. I have given careful consideration to the arguments and minutely gone through the relevant papers on record. It is admitted fact that the suit was filed in the year 2006 and issues were framed on 25-1-2007 thereafter the matter was being adjourned on each and every date for the evidence of the plaintiffs/appellants. The said history of the case is shown in para-1, page-2 the Judgment of the trial Court and it has also been mentioned in the order that on 29-10-2010 and 21-2-2009 costs were also imposed upon the appellants/plaintiffs with direction to produce the evidence. The appellants/plaintiffs did not comply with the directions and warnings. Consequently the trial Court was compelled to reject the adjournment application filed by the appellants/plaintiffs. Not only this, but it also appears from the record that Advocate for the appellants/plaintiffs was inclined to write letter to the parties to withdraw his power. This prima facie shows that the plaintiffs/appellants have lost interest even by not remaining in touch with their advocate which shows negligence and laxity on their part. Law also favours who are vigilant and not indolent. No explanation has been brought on record that why they were not in contact with their advocate or not attending the court except that the matter was adjourned due to strikes of Advocates. This plea is not acceptable because this is not a matter of a single date of absence but regarding the absence of 34 dates. Rules and Regulations are framed for compliance and not for abrogation. In circumstances when many opportunities for recording the evidence were granted to the plaintiffs/appellants who failed to produce evidence, the trial Court proceeded under Order XVII Rule 3, C.P.C., closed the said and the said order of the trial Court was upheld by the appellate court. In similar circumstances in a case of FATEH SHER v. MUHAMMAD ZUBAIR (2003 SCMR 797) the Hon'ble Supreme Court refused to grant the leave to appeal. In the instant case plausible or good explanation has been brought on record that non-appearance of appellants or their witnesses was beyond their control or it was with any bona fide. The contention of learned counsel for the appellants/plaintiffs that trial Court did not decide the case on the basis of issues is also devoid of force for the reasons that burden lies upon the appellants/plaintiffs to prove their case positively, which they have failed to prove, even though the trial Court has discussed the material available on record issue-wise at the time of passing the Judgment under Order XVII Rule 3, C.P.C. The orders of trial Court and appellate court are justified and require no interference in second appeal, which is dismissed accordingly. AG/S-29/K Appeal dismissed.