2007 PLP 1072 (MLD)

MUHAMMAD MUZAMMAL KHAN, J.

Instant first appeal is directed against the judgment/decree, dated 25-6-2001 passed by the learned Civil Judge Gujranwala whereby evidence of the appellant was closed under Order XVII Rule 3 C.P.C. and his suit for recovery of Rs.37,00,000 was dismissed.

2. Succinctly, relevant facts are that appellant filed a suit for recovery of Rs.37,00,000 against the respondents on 23-7-1995, which was contested by the respondents and out of controversial pleadings of the parties, issues were frames on 3-4-1996. Pending suit, respondents Nos. 5 to 9 were impleaded as defendants to the suit vide order, dated 9-2-1998 passed by the learned Senior Civil Judge. Suit, on administrative side was transferred to the Court of another learned Civil Judge who framed fresh issue on account of amendment in the pleadings, vide order, dated 26-3-1998 and then on 1-4-1999 some additional issues were also framed. Case was being fixed for evidence of the appellant who had summoned through process of the Court, the Manager of the concerned Bank in order to prove the Cheque issued by respondent No.1, on the basis of which the appellant had filed his suit. Suit was once against transferred from the Court cognizant of the suit on administrative side on 4-5-2001. Parties appeared before the Transferee Court on 21-6-2001 where the case was taken up for recording of evidence, ignoring that some application for consolidation/transfer of case had been moved before the learned District Judge, Gujranwala. Appellant's right to' lead evidence was ultimately closed on 25-6-2001, as he failed to produce his evidence and thus punitive provisions of Order XVII Rule 3 C.P.C. were invoked and his suit was dismissed on account of lack of proof through judgment/decree of even date, impugned in this appeal. The appeal was admitted to regular hearing and after completion of record, the same has now been fixed for final hearing. Respondents in response to notice by this Court have appeared and were represented through their counsel.

3. We have heard the learned counsel for the parties and have examined the record. Appellant's suit had been adjourned from 21-6-2001 to the date on which his right to lead evidence in support of his case put forth in the plaint, was struck. Order, dated 21-6-2001 is the most pivotal/crucial to determine/decide the legality or otherwise of invocation of provisions of Order XVII Rule 3, C.P.C. and this order reads as under:-- "21-6-2001 present parties counsel. Plaintiff's witnesses not in attendance. Request for adjournment made by the plaintiff's counsel is acceded subject to payment of Rs.500. The case to come up on 25-6-2001 for recording the evidence of the plaintiff. This is last and final opportunity. No further time shall be extended."

4. The above reproduced interim order by the trial Court clearly depicts that learned counsel representing the respondents/defendants did not object to adjournment prayed, probability for the reason that the case had been received by the Court, on transfer on the preceding date i.e. on 14-5-2001 and adjournment like on granted by the trial Court on 21-6-2001 would be deemed to be a routine adjournment and would not call invocation of provisions of Order-XVII Rule 3, C.P.C. in spite of the fact that the same had been granted subject to payment of costs. Law regarding adjournments without objection by the opposing parties is firmly settled to the effect that in such cases, those should be adjourned under Rule, 1 instead taking cognizance of those under Rule, 3 of Order XVII C.P.C. Reliance in this behalf can conveniently be made to the judgment of the Apex Court in the case of Syed Tasleem Ahmad Shah v. Sajawal Khan and others (1985 SCMR 585) wherein it was held that in absence of any objection by the plaintiff, it would not amount to grant time to the defendants at his request in terms of the provisions under discussion and the Court was not justified to invoke those, for closing evidence or the defendant. In this erstwhile judgment by the Honourable Supreme Court, earlier judgments in the cases of Molvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (PLD 1971 SC 434) and Executive Engineer Peshawar v. Messrs Tour Mehmood and Sons and 4 others (1983 SCMR 619) were graciously distinguished.

5. The trial Court had itself noted in the impugned judgment, dated 25-6-2001 that appellant/plaintiff was not present in the Court which depicts that he was not called upon or afforded an opportunity of appearing in the witness box, as his own witness. It is also evident from the record that appellant's counsel was present in Court at the time of passing of impugned judgment but he was not required to produce whatever evidence oral/documentary available with him. The trial Court simply noticed the date of institution of the suit as 23-7-1995 and c ignoring stages at which it was transferred on different occasions on administrative side and issues originally framed were re-cast and thereafter certain additional issues were framed, as noted in factual part of this judgment. The trial Court did not attend to the fact that respondents Nos. 1 to 4 had also filed a separate suit for cancellation of documents relied in the plaint by the appellant and an application for its consolidation/transfer was sub judice before the learned District Judge where it was fixed for 29-6-2001 and pending this application, punitive action against the appellant was taken, in form of dismissal of his suit.

6. Learned counsel for the appellant though had attacked the impugned judgment/decree with the claim that his suit on 21-6-2001 was adjourned to 25-7-2001 and instead the same was taken up on 25-6-2001 and in support of this assertion he relied on affidavit but we are not ready to accept this submission as presumption of regularity/correctness is attached to judicial proceeding which cannot be adjudged on mere affidavits. Reliance in this behalf can be made by the Apex Court in the case of Muhammad Murad Abro v. The State through A.G. (2004 SCMR 699) Fayyaz Hussain v. Akbar Hussain and others (2004 SCMR 964). Likewise, his arguments of adjourning the case for evidence only for 4 days i.e. from 21-6-2001 to 25-6-2001 being improbable, has no subsistence in it, in view of clear proviso to Rule 1 of Order XVII C.P.C. whereunder suit on reaching the stage of evidence was to proceed on day to day basis. Stance of the learned counsel for the appellant that since Manager of the Bank concerned had been summoned through Court and the appellant had already deposited the diet money/process fee of the summoned witnesses, the trial Court should have procured attendance of the witnesses under its own powers instead of unnecessarily penalizing the appellant, has legal worth in it, but there is no proof before us to accept this assertion, especially when there is enough material on the file to negate the action taken by the trial Court. Scan of record and the impugned order/judgment revealed that inapplicable provisions of Order-VII Rule 3 C.P.C. were incorrectly brought to non-suit the appellant, thus the impugned judgment/decree is not sustainable, being opposed to law and we are inclined to grant the appellant, at least one opportunity for adducing his entire evidence subject to payment of costs to the respondents who have unnecessarily suffered for an act of the Court or that of the appellant.

7. For the reasons noted above, instead appeal is bound to succeed and is accordingly accepted. The impugned judgment/decree/order, dated 25-6-2001 are set aside, with the result that suit filed by the appellant shall be deemed to be pending wherein he shall be granted only one single opportunity of producing his entire evidence, on a date to be fixed by the trial Court subject to payment of costs of Rs.15,

000. In case of non-availability of the learned Presiding Officer of the trial Court on the date fixed for evidence, the same shall be recorded by the Duty Judge working in his place and no further adjournment shall be granted to the appellant. In case of failure of the appellant to produce the evidence, the impugned judgment, dated 25-6-2001 will stand revived, rescinding instant opportunity to him, automatically. There will be no order as to costs as far as instant appeal is concerned. Parties are directed to appear before the trial Court on 8-3-2007. S.A.K./M-142/L Appeal accepted.