1998 PLP 1680 (CLC)

MIAN MUHAMMAD AJMAL, J.‑‑‑This Regular First Appeal is directed against the judgment and decree dated 9‑9‑1911 passed by the learned Senior Civil Judge, Peshawar under Order 17, Rule 3, C.P.C.

2. M/s. Tahir Shoaib and Rashid Shoaib, Engineers/Contractors of village Khall, District Dir instituted a suit in the Court of Senior Civil Judge, Peshawar against Government of N.‑W.F.P., through Secretary to Government of N.‑W.F.P. C&W Department, Peshawar and 3 others for recovery of Rs.7,79,500 and permanent injunction restraining the defendants from the recovery of Rs.4,58,000 from them; that an ex parte decre was passed against the defendant‑appellants on 28‑1‑1988 which on the application of the appellants was set aside on 11‑6‑1988, whereagainst the appeal filed by the respondent in this Court did not bear any fruit; that thereafter the appellants contested the suit by filing written statement; that in view of the pleadings of the parties issues were framed and plaintiff's statement was recorded, on 9‑9‑1991 the learned Civil Judge purportedly proceeded against the defendant‑appellant under Order 17, Rule 3, C.P.C. and passed an ex parte decree in favour of plaintiff respondent; that the appellants filed an appeal in the Court of District Judge, Peshawar which was withdrawn on 16‑7‑1992, for lack of pecuniary jurisdiction and for presentation before proper forum. The office of the Advocate‑General found the decree to be defective as such an application was made for correction of the decree in accordance with the provisions of Order 20, Rule 6, C.P.C. The application was accepted on 19‑9‑1992 and Moharrir was directed to prepare fresh decree sheet in accordance with Order 20, Rule 6, C.P.C. Hence this appeal.

3. Learned counsel for the appellants contended that the provisions of Order 17, Rule 3, C.P.C. are not applicable to the facts of this case as on the preceding date to 9‑9‑1991 i.e. 2‑7‑1991, the parties were present but the counsel for the plaintiff‑respondents was stated to be busy in the High Court, therefore, a request was made on his behalf for adjournment and the case was adjourned to 9‑9‑1991 for evidence of the plaintiff. On the adjourned date, too, only the plaintiff was in attendance but neither his counsel nor witnesses were available. He submitted that the suit could not be dismissed under Order 17, Rules 3, C.P.C. but recourse should have been made to Order. 17, Rule 2, C.P.C. and thus decree passed under Order 17, Rule 3, C. P. C, is without jurisdiction. He urged that it was incumbent upon the trial Court to have recorded its findings on merits after taking into consideration the available evidence and other material on the record, and could not straightaway decree the suit by mere observation that ex parte decree under Order 17, Rule 3, C.P.C. is passed in favour of the plaintiff. Regarding delay if any in filing the appeal, he submitted that since the decree passed by the Civil Court was defective, therefore, corrective measures were adopted to get it corrected; and after its correction appeal was filed.

4. On the other hand, learned counsel for the respondents defended the impugned order by arguing that Order 17, Rule 3 has rightly been applied. He contended that the appeal is time‑barred and liable to be dismissed.

5. We have given due consideration to the contentions of the learned counsel for the parties and perused the record of the case with their assistance.

6. We will first take up the question whether the appeal filed in this Court is within time. The impugned order was passed on 9‑9‑1991. An application for an attested copy was made on 9‑10‑1991 and copy was delivered on 5‑11‑1991, on the same day appeal was filed in the Court of District Judge, Peshawar, which was returned to the appellant on 16‑7‑1992 for lack of pecuniary jurisdiction. The office of the Advocate‑General on examination of the documents found that the decree‑sheet had not been drawn according to Order 20, Rule 6, C.P.C. as such an application was filed in the trial Court for the correction of the decree which application was accepted on 19‑9‑1992 and Moharrir was directed to draw the decree in accordance with the provisions of Order 20, Rule 6, C.P.C. The appellants applied for the copies of the aforesaid order and the decree‑sheet which were given on 22‑9‑1992, and the appeal was filed on 26‑9‑1992. The appellants after the return of the appeal spent about two months in getting the decree‑sheet corrected from the trial Court. In Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 the august Supreme Court of Pakistan observed as under:‑‑ "We feel that omission on the part of learned District Judge to take timely action is the major cause of re-filing of the appeal by the appellants, in the High Court, out of time. They have been the victim of the act of the Court which furnishes 'sufficient cause' under section 5 of the Limitation Act, for condonation of delay. The fact that after receiving the memorandum of appeal from the District Court, some time was consumed by the appellants, in presenting it to the High Court, in the circumstances of the case is inconsequential. We are, therefore, inclined to condone the delay in presenting the memorandum of appeal to the High Court. " Since the facts of the above‑quoted case are somewhat similar to one in hand, therefore, there is sufficient cause to condone the delay.

7. It is evident from the impugned judgment/decree that the trial Court without considering the material available on the record comprising of the pleadings of the parties and evidence of the plaintiff, straightaway decided the suit. It may be noted that on the preceding date i.e. 2‑7‑1991 the hearing was odjourned at the request of the plaintiff for his evidence. The order‑sheet of 9‑9‑1991 on which date ex parte decree was passed is silent about the fact whether plaintiff had produced his evidence on the adjournment date as the date was fixed for plaintiff's evidence. Rule 3 of Order 17, C.P.C. is not mandatory in nature, and where there is no sufficient material on the record, the Court should have adjourned the case to enable the parties to tender their evidence and then to have decided the case on merits. The Court should not decide the case summarily as it has to pass a decree which must conclusively determine the rights of the parties. In the instant case though the statement of the plaintiff was on the record yet the Court without considering it proceeded to pass an ex parte decree summarily and that too under the wrong provision of law which is patently illegal. It is now well‑settled law that the Court while proceeding under Order 17, Rule 3, C.P.C. should record its finding in the case on merits after considering the entire material on the record. In case of Amanullah Khan. v. Mst. Akhtar Begun (1993 SCMR 504), the august Supreme Court of Pakistan while examining Order 17, Rule 3, C.P.C. observed as under: "On the legal plane it appears that Order 17, Rule 3, C.P.C. contemplates that when any party fails to produce evidence, the Court may notwithstanding such default, proceed to 'decide' the suit forthwith. According to dictionary words 'to decide' mean "settle (question, issue, dispute) by giving victory to one side; give judgment (between, for, in favour of, against), bring come to a resolution". 'Decision' means 'settlement, conclusion, formal judgment, making up one's mind'. Word 'decision' came up for examination in the case of Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 and it was held that 'decision' means judicial determination in accordance with evidence before the Court. Coming back to Order XVII, Rule 3, C.P.C. the requirement of the law is that the Court has to decide the suit which means that material and evidence brought on the record is to be considered in order to decide the suit. In the instant case evidence of the plaintiff was recorded and from issues in several burden was put on the plaintiffs. Side of the defendants was closed as they failed to bring their witnesses on the date of hearing. In the circumstances it was mandatory for the Court to have examined the evidence brought on the record. It was not proper to have decreed the suit straightaway without examination of evidence brought on the record." In view of the dictum laid down in the above‑cited case, it is apparent that the trial Court in passing the impugned decree acted illegally and without lawful authority. Consequently, this Regular First Appeal is accepted, the impugned judgment/decree is set aside and the case is remanded back to the trial Court to allow the parties to produce their evidence. The trial Court is directed to conclude the trial within 4 months positively. The record shows that the appellants have not been vigilantly persuing its case and, thus, causing delay in the disposal thereof, which is deplorable. The appellants are burdened with the cost of Rs.1,

000. H.B.T./31/P Appeal accepted.