1995 PLP 483 (CLC)

Ch. Muhammad Saleem for Respondents. Date of hearing: 8th November, 1994. This petition under section 115 of Civil Procedure Code calls in question an order of the trial Court dated 10th February, 1993, whereby while adjourning the case for recording statement of the plaintiff/petitioner the remaining evidence of the plaintiff/petitioner was closed by it.

2. The dispute arises out of a suit for recovery of Rs.11,86,000 filed by the petitioner against the respondents. Despite having obtained various adjournments the petitioner failed to complete his evidence and produced only two witnesses. Consequently, on 10th February, 1993 his remaining evidence except his own statement was closed by the trial Court. The case was, however, adjourned to 28‑3‑1993 for recording the statement of the petitioner. This order has become impugned in this petition.

3. Mian Hamid Farooq, learned counsel for the petitioner has relied upon two judgments of this Court namely Muhammad Ismail v. L.DA. etc. (NLR 1988 Civil 438) and Muhammad Ramzan and others v. Muhammad Ramzan and others (1992 CLC 543) to contend that the trial Court having itself adjourned the case for recording the statement of the petitioner, could not have closed his remaining evidence.

4. In reply Ch. Muhammad Salim, Advocate, has argued that the course adopted by the trial Court was permissible under Order 17, rule 1(3) of the Civil Procedure Code as amended by the Lahore High Court. The learned counsel pointed out the distinction between Order 17, rule 1(3) and Order 17, rule 3 of the Code and also cited Mst. Zaitoon Begum and 2 others v. Muhammad Ilyas and 6 others (PLD 1971 Lah. 143) in support of this argument.

5. The question which falls for determination in the present case is whether the trial Court could in law while adjourning the case for recording statement of the petitioner close his remaining evidence.

6. Having heard the learned counsel for the parties at length I find that the answer to the above question has to be in negative. Although as pointed out by the learned counsel for the respondent there is a distinction between Order 17, rule 1(3) and Order 17, rule 3 of the Code of Civil Procedure which is that after the refusal of adjournment, under the latter provision the Court is required to decide the suit forthwith while under the former the Court has to proceed with the suit, but the course adopted by the trial Court is not countenanced by either of the two provisions inasmuch as the Court instead of either proceeding to decide the suit or proceeding with it adjourned it for the purpose of recording statement of the petitioner. In these circumstances, the Court could not have closed the remaining evidence of the petitioner and while doing so it has acted arbitrarily.

7. This view finds support from Muhammad Ismail v. L.DA. (NLR 1988 Civil 438) wherein my learned brother Muhammad Afzal Lone, J. (as he then was) while relying upon Alam Bibi v. Senior Civil Judge, Sialkot and others (1989 CLC 56) held that as' the trial Court had adjourned the case for the statement of some witnesses it could not have passed an order closing the other evidence of the plaintiff. To the same effect there is judgment of this Court in Muhammad Ramzan and others v. Muhammad Ramzan others (1992 CLC 543).

8. The case relied upon by the respondent's learned counsel namely Mst. Zaitoon Begum and 2 others v. Muhammad Ilyas and 6 others (PLD 1971 Lah.143) is distinguishable on facts and has no applicability. In view of what has been stated above, this petition is allowed, the impugned order is set aside and the plaintiff is granted one last and final opportunity to produce whatever evidence he desires in support of his case at his own responsibility, failing which his evidence shall stand closed. The parties shall appear before trial Court on 28th November, 1994. There shall be ho order as to costs. A.A./F‑173/L?????????????????????????????????????????????????????????????? ??????????? Revision accepted.