1998CLC333 (PLP)

Ch. Muhammad Sharif Tariq, Advocate for Appellant. Ch. Muhammad Azam Khan, Advocate for Respondents Date of hearing: 29th March, 1997. SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been directed against the judgment and decree of the High Court dated 6‑6‑1996, whereby accepting the appeal filed by the defendants‑respondents, the judgment and decree of the District Judge, Kotli, were set aside and that of the trial Court were restored.

2. The facts giving rise to the present appeal are that a suit for declaration was filed by Muhammad Bashir, appellant, herein, alleging that he was owner of the suit land and, thus, the power of attorney dated 7‑4‑1953 and the sale‑deed dated 24‑5‑1953 were null and void against his interests. After framing the issues, the trial Court proceeded with the trial and the plaintiff‑appellant was called upon to adduce evidence. However, his suit was dismissed by the Sub- Judge vide his order dated 10‑7‑1993 under Order XVII, rule 3, C.P.C. for the non‑production of his evidence. An appeal was preferred to the District Judge who accepted the same and remanded the case to the trial Court to proceed with it according to law. On second appeal to the High Court, the judgment and decree of the District Judge were set aside and that of trial Court were restored. The present appeal has been preferred against the judgment of the High Court.

3. We have heard the arguments. It has been argued by Ch. Muhammad Sharif Tariq, Advocate, the learned counsel for the appellant, that on 10‑3‑1993 it was heavily raining and the plaintiff‑appellant could not reach the Court in time to produce his witnesses. According to the learned counsel for the appellant, the plaintiff had reached the Court alongwith two witnesses at 11‑00 a.m. on 10‑7‑1993 but his suit had already been dismissed under Order XVII, rule 3, C.P.C. The learned counsel has strenuously argued that the trial Court should have waited till the closing hours of the Court and should not have hastily dismissed the suit. He has cited a case reported as Badri Prasad v. Ambika Pershad (AIR 1941 Oudh 91), wherein an application under Order XXI, rule 97 was dismissed for default but the same was restored on the ground that as the applicant had reached the Court late only by fifteen minutes, and, thus, the relevant order was held as unsustainable. It was also observed by the High Court that the application of the auction‑purchaser should not have been dismissed during the early hours of the day; and that the trial Court had the jurisdiction to restore the application under its inherent powers. The learned counsel for the appellant has further argued that the plaintiff‑appellant should be shown indulgence in view of the fact that on 16‑2‑1993, two of the witnesses of the plaintiff‑appellant were present but their statements could not be recorded due to absence of the counsel for the respondent; similarly, on 18‑4 1993, one of the witnesses for the plaintiff was present but again his statement could not be recorded due to absence of the counsel for the respondent:

4. Ch. Muhammad Azam, Advocate, the learned counsel for the respondent, controverted the arguments advanced by the learned counsel for the appellant. He has argued that in all the plaintiff‑appellant was provided as many as thirteen opportunities for producing his evidence but he failed to do the needful. He did not controvert that on 16‑2‑1993, two witnesses and on 18‑4‑1993 one witness for the plaintiff were present but all the same he has submitted that the plaintiff did not deserve any leniency in view of the subsequent default made by him in producing his evidence. The learned counsel contended that on 18‑4‑1993, when the statement of one of the witnesses for the plaintiff could not be recorded due to absence of the counsel for the respondent, he was given an opportunity to produce his evidence on 15‑5‑1993. But on 15‑5‑1993, the plaintiff again failed to bring any evidence and he was given last opportunity for producing evidence on 14‑6‑1993. On 14‑6‑1993 again, the plaintiff‑appellate failed to bring any witness and he was provided 'last and final' opportunity on payment of Rs.20 as costs and the case was adjourned for 10‑7‑1993. On 10‑7‑1993 again, no evidence was produced by the plaintiff and the suit was dismissed under Order XVII, rule 3, C.P.C. The learned counsel has contended that the order dated 10‑7‑1993 does not show that on 10‑7‑1993, there was any rain and it was not possible for the plaintiff‑appellant to reach the Court in time. He has maintained that the mere filing of affidavit by the plaintiff‑appellant before the District Judge that he could not reach the Court in time on 10‑7‑1993 is of no avail to him. The learned counsel also maintained that there is no authority in support of the proposition that while proceedings under Order XVII, rule 3, C.P.C., the Court is bound to wait for the appearance of the plaintiff or his witnesses till closing hours of the Court.

5. We have given due consideration to the matter. Despite the fact that on two occasions, as has been indicated above, the witnesses for the plaintiff were present but their statements could not be recorded due to absence of the counsel for the defendants‑respondents but the fact remains that the plaintiff was provided further opportunities on 18‑4‑1993, 15‑5‑1993 and 14‑6‑1993, the last being on payment of costs; it was recorded specifically by the Court in the order dated 14‑6‑1993 that he was being provided the 'last and final' opportunity and no further adjournment would be given to him. But despite that neither costs were paid nor any witness was produced by him. There is also no prayer by the counsel for the plaintiff that the proceedings in the suit might be kept pending till the closing hours of the Court, because the witnesses could not reach in time due to heavy rain. So far as the authority cited by the learned counsel for the appellant is concerned, that is distinguishable because in that case the applicant ,was late only by fifteen minutes and his application was dismissed in default. The applicant made an application to the Trial Court for the restoration of his application but the same was also dismissed. In the instant case, the suit was neither dismissed in default nor it could be done so because the counsel for the plaintiff was present; the suit was decided under Order XVII, rule 3, C.P.C. Therefore, the authority cited by the learned counsel for the appellant has no I application to the facts of the case in hand. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs. A.A./226/SC(AJ&K) Appeal dismissed.