P L D 1993 Peshawar 192 (PLP)

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0. XVII, R.3‑‑‑Defendants' failure to produce evidence on the last chance granted to them, culminated into a decree granted in favour of plaintiffs‑‑ Validity‑‑‑Provision of OXVII, R.3, Civil Procedure Code was permissive and not mandatory‑‑‑Court was required to decide the case forthwith on merits and in that process Court was to hear the arguments of parties and give judgment on each and every issue in the light of the evidence brought on record‑‑‑Court was not supposed to grant a decree to plaintiffs as against defendants without hearing arguments and decision on each issue‑‑Plaintiff's case could be dismissed in spite of evidence on record, if the same did not prove plaintiff's case‑‑‑Courts below in decreeing the suit summarily, had acted illegally and with material, irregularity‑‑‑Defendants having failed to produce evidence in spite of last opportunity were granted a further opportunity to produce their evidence on payment of heavy costs‑‑‑Case was remanded for further proceedings in accordance with law. Adam Khan, Asstt. A: G. for Petitioners. M. Waris Khan for Respondents. Date of hearing: 22nd May, 1993. Civil Revision No‑370 of 1987 arises in the background of facts that a suit instituted by Fazal Maula etc. as against the Provincial Government and its functionaries was proceeded in framing of issues arising out of the pleadings, that the plaintiffs closed their evidence and the case was fixed for the evidence of the defendants, but defendants meanwhile filed an application for amendment of the written statement which was allowed and fresh issues were framed but more or less on the pattern of the previous issues. Case was fixed for the evidence of the defendants without a statement of the plaintiffs that they were not to produce further evidence in the case. Defendants did not, however, produce their evidence on 25‑9‑1986 and Government Pleader requested for adjournment, that the Court granted a last adjournment and fixed the case for the evidence of the defendants on 13‑12‑1986. On the day the defendants' evidence was again not in attendance and the Court proceeded to close the defendants' evidence .under Order XVII, rule 3, C.P.C. and straightaway granted a decree to the plaintiffs as against the defendants. The said decree was appealed against and the learned District Judge dismissed the appeal under observations that it was the bounden duty of the defendants to have produced their evidence on 13‑12‑1986, the last chance was provided to them but they failed and as such the trial Court was justified in closing their evidence under Order XVII rule 3, C.P.C. He also referred to the non‑attendance of the representatives of the defendants on the said date and further a medical certificate appended to the memo. of appeal was dubbed as a lame excuse. Defendants have riled the instant revision as against the aforesaid judgments and decrees of the Courts.

2. During the course of hearing the learned counsel for the plaintiffs respondents was confronted with. a legal position that Order XVII, rule 3, C.P.C. was permissive and not mandatory and further Court was supposed to proceed to decide the suit forthwith on merits that in the process he was to hear the arguments of the parties and give judgment on each and every issue in the light of the evidence brought on record and that he was not supposed to summarily decide the case in the manner as to grant a decree to the plaintiffs as against the defendants without discussion and decision on each issue. He was apprised that in case of decision on merits there can also occasion a dismissal of the suit in spite of the evidence on record if the same was not to prove the plaintiff's case. Case‑law on the subject is settled that a decision under Order XVII, Rule 3, C.P.C. must be a decision on merits on consideration of the entire material on record and after hearing arguments of the parties. It was thus found that the Courts below have acted illegally and with material irregularity in decreeing the plaintiffs' suit and dismissing the defendants' appeal filed thereagainst and consequently this revision petition is accepted, judgments and decrees of the Courts below are set aside and case is remanded for further trial. Herein the defendants had failed to produce evidence in spite of a last opportunity and they ask for a chance to produce evidence, hence they are granted a further opportunity to produce their evidence on payment of heavy costs in the sum of Rs.3,000 (Rupess three thousand only). AA./1484/P Order accordingly.