1990 PLP 1293 (CLC)

Date of hearing: 27th September, 1989. This is a revision petition against the judgment and decree passed by the learned District Judge, D.I. Khan, dated 24‑9‑1983 whereby the order and decree dated 14‑3‑1982 of the learned Senior Civil Judge, D.I. Khan, was affirmed and suit filed by Doctor Inayatullah Khan plaintiff‑respondent herein, against the Government of N.‑W.F.P. and 4 others for declaration and perpetual ‑injunction had been decreed under Order XVII, Rule 3 of the Civil Procedure Code.

2. Shorne of unnecessary details, the case of the plaintiff‑respondent as set up in the plaint filed on 22‑4‑1978 is that notwithstanding his compulsory retirement under Martial Law Regulation No.114 of 1972, he was entitled to promotion and consequential benefits in arrears of pay and enhanced pension with effect from 25‑12‑1965 till the date of his retirement in preference to Doctor Najmuddin and Doctor Iftikhar‑ul‑Islam, defendants 4 and 5.

3. Defendants 1, 2 and 3 jointly while defendant No.4 separately contested the suit. In their joint written statement submitted by them, it was pleaded that the Civil Court was devoid of jurisdiction to entertain this suit; that the plaintiff had no locus standi; and that the suit was not maintainable in the form it has been filed. On merits, the claim of the plaintiff to his seniority and consequential benefits and recovery of arrears of pay and enhanced pension was denied. The learned trial Court, in view of the respective pleadings of the parties, raised the following issues for trial:‑ (1) Whether the plaintiff has got cause of action or any locus standi? (2) Whether the suit is not competent in its present form? . (3) Whether this Court as Civil Court has got the jurisdiction to entertain the present suit? (4) Whether the plaintiff is entitled to the declaration and perpetual injunction prayed for ? (5) Relief.

4. The plaintiff in order to prove his claim relied on a heap of record which he had placed on the file. Perusal of the order sheet would reveal that the evidence of the plaintiff was concluded on 5‑9‑1984 and the case was posted for evidence of the defendants to 2‑10‑1984. Since the evidence was not in attendance, therefore, the case was adjourned to 27‑10‑1984 on which date the evidence could not be produced by the defendants and upon the request of the Government Pleader, the case was fixed for evidence on 14‑11‑1984. On subsequent 4 other adjournments till 26‑1‑1985, the evidence was not made available to the trial Court. The learned Senior Civil Judge, who was seized of the case, found that no sufficient cause was shown for allowing another adjournment, invoking the provisions of Order XVH, Rule 3 of the Civil Procedure Code and after closing the defendants' evidence decreed the suit on 26‑1‑1985. Against the judgment and decree aforesaid, the defendants appealed to the learned District Judge, D.I. Khan. Appeal proved unsuccessful and was dismissed on 24‑9‑1984. The defendants still feel dissatisfied and have come up to this Court to seek revision of the orders passed by the Courts below. 5: Mr. Faizullah Khan Sadozai, the learned counsel appearing on behalf of the defendants‑petitioners, urged that the trial Court had fallen into an error in applying Order XVII, Rule 3 of the Civil Procedure Code against them. The learned counsel also argued that the decision reached under Order XVII, Rule 3 of the Civil Procedure Code warrants decision on merits and not in the summary manner it has been decreed. In support of his contention, the learned counsel placed reliance on (1) Muhammad Haleem v. M.M. Muhammad Naeem P L D 1969 SC 270, (2) Bahadur Shah v. Sharaf Major P L D 1967 Lah. 154, (3) Delal Khan v. Province of West Pakistan P L D 1970 Quetta 79, (4) Zaitoon Begum v. Muhammad Ilyas P L D 1971 Lah. 143 and (5) Rahim Bakhsh v. Mst. Nazir Khanam 1980 C L C 595.

6. The suit has been decreed without having recourse to the voluminous documentary and oral evidence adduced by the respondent. In such a situation, it is incumbent upon the trial Court to decide the suit on merits rather than passing A the decree in a summary manner without any discussion on the issues involved in the controversy. This view was expressed by their Lordships of the Supreme Court in Muhammad Haleem and others v. M.M. Muhammad Naim and others cited above and laid down that: "In the facts and circumstances of the case before us we have no hesitation in coming to the conclusion that this was not an appropriate case in which the Court, acting in the proper exercise of its judicial discretion, should have dismissed it for non‑prosecution. The entire evidence had been led and the Court should have come to a decision on merits in the matter." This proposition was later on followed in another reported decision of the West Pakistan itself as also from this Court and the High Court of Balochistan cited above. The ratio in all these cases is that the Court under Rule 3 of Order XVII, C.P.C. had "to proceed to decide the suit forthwith." By a decision "forthwith" it is meant that the Court must decide the case on the same day and cannot adjourn the hearing to some other date and then purport to decide it under this rule. The Court, therefore, rightly proceeded to decide the case on the same day. Nonetheless, a decision "forthwith" is, however, to be a decision on merits. It must be on consideration of such material on the record as it is necessary. It does not at all mean that it should be a summary decision. There is, however, one caution which need to be emphasized. The rule can be pressed into service when it is possible to decide the case on merits and it, therefore, cannot apply when the suit sis at a preliminary stage. In Bahadur Shah's case cited above, it was pointed out that if a party has to discharge the onus of proof of an issue which is only a preliminary issue and fails to do so, the suit cannot be decided under Order XVII, Rule 3 of the Civil Procedure Code, unless the decision also affects the merits of the case.

7. In order to elaborate my point of view, I may lend two instances from the case of Mst. Zainab Bibi v. Khuda Bakhsh (1986 C L C 1074). The first instance is in a suit on a promissory note the execution of which had not been denied by the defendant and the defence is one of want of considerations but the defendant seeks time to produce evidence. Time is allowed but he makes default in producing evidence. Conversely, in case the defendant denies execution of the promissory note and the plaintiff is granted time to prove execution but he fails to prove it. In the first case, the suit can be appropriately decreed under Order XVII, Rule 3 C.P.C. without recording further evidence in view of legal presumption contained in section 118 of the agotiable Instruments Act. In the second instance, however, it would be appropriate to adjourn the case for plaintiffs evidence. In the first case, it can perhaps be said that the promissory note the execution whereof has been admitted constitutes evidence and there is material on record to the applicability of Rule 3 of Order XVII C.P.C. In the second case, however, the execution not having been admitted, there is obviously no evidence. The plaintiff fails to discharge his duty. In such a case, an order to adjourn the case for plaintiffs evidence would be proper.

8. In view of what has been discussed above, I am of the opinion that there was every justification for the Court to have refused further adjournment to the defendants‑petitioners to adduce evidence. Nonetheless there was absolutely no warrant in law to have decreed the suit summarily. In exercising the powers under Rule 3 of Order XVII C.P.C. the learned trial Judge was required to have decided the case on merits, because there was sufficient evidence on the file.

9. In the view of the matter, the orders of both the trial Court and the Appellate Court are thus illegal and call for interference under the revisional jurisdiction of this Court. The decrees of the trial Court and the District Judge are, therefore, set aside, and the case is remanded to the trial Court. It shall only record a judgment on merits within one month of the receipt of the file. The parties are directed to appear before the learned Senior Civil Judge, D.I. Khan, when summoned by him. There shall be however, no order as to costs. H.B.T./962/P Order accordingly,