1994 PLP 2312 (MLD)

MUNAWAR AHMAD MIRZA, C.J.--This appeal is directed against judgment and decree dated 8th September, 1993 passed by learned Senior Civil Judge, Quetta.

2. Relevant facts briefly stated are, that respondent Haji Muhammad Rahim filed a civil suit in December, 1989 claiming recovery of Rs.2,02,000 (Rupees. two lac and two thousand only) alongwith interest and damages to the tune of Rs. One million. Appellant-Bank filed written statement on 20-2-1990 repudiating .the claim. Maintainability of suit as framed was also challenged. Similarly claim with regard to recovery of amount and damages was vehemently denied. Learned trial Court framed following issues on 21-2-1990 and gave parties opportunity of leading evidence:-- (1) Whether the cheque in question was issued by the plaintiff? (2) Whether the defendant cashed cheque in question negligently without observing the formalities? (3) Whether due to dishonouring of cheque issued on 23-7-1989 by the defendant, the plaintiff's reputation was, damaged and he suffered with mental torture and agony? (4) Whether the plaintiff is entitled for damages? If so, to what extent? (5) Whether the plaintiff is entitled to the relief claimed for? (6) Relief.

3. Record reveals that plaintiff/respondent got recorded his own statement for substantiating claim in suit. Whereas appellant-Bank examined D.W.1 Muhammad Aslam. Several adjournments were sought for producing remaining evidence. Eventually on the failure to comply with directions, defence of appellant was struck off exercising powers under Order XVII, Rule 3, C.P.C. and trial Court decreed the suit by means of judgment dated 8th September, 1993. Operative portion is reproduced below:-- URDU-2314 The above decree has now been challenged through this appeal.

4. Mr. Zahid Moquim Ansari, Advocate appearing for appellant-Bank strenuously urged that even if side of appellant for producing evidence was closed; trial Court ought to have examined attorney of appellant. Learned counsel contended that even after closing the side, it was obligatory for the trial Court to consider evidence on record. Final decree by ignoring available material is illegal and contrary to the spirit of law.

5. Mr. Tariq Mehmood, Advocate felt great difficulty in supporting the decree, which had been passed by ignoring the evidence. However, it was emphatically argued by him that the closing of evidence was justified because several opportunities for leading evidence were allowed to appellant-Bank.

6. We have carefully perused case file of trial Court and considered the arguments advanced by learned counsel for parties. Firstly it is quite apparent that trial Court granted six opportunities to appellant-Bank for producing evidence, but effective measures were not adopted for said purpose. We, therefore, feel that impugned Order to the extent of closing evidence is proper. However, absolutely no opportunity for examining attorney was provided to appellant. Thus denial to record his statement was certainly unjustified. Additionally bare perusal of Order XVII, Rule 3, C.P.C. suggests that when party fails to comply or perform necessary directions which hampers progress of the suit, the Court has authority notwithstanding such default to decide the matter forthwith. For ready reference Order 17, Rule 3, C.P.C. is reproduced below:-- "Order 17, Rule 3, C.P.C.

Court may proceed notwithstanding either party fails to produce evidence, _etc.

Where any party to a suit to whom time had been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default proceed to decide the suit forthwith."

7. There is absolutely no doubt, that on the failure of appellant to produce evidence, trial Court had plenary powers to proceed further, and decide the suit forthwith. Nevertheless Court cannot act arbitrarily or pass orders blind-foldedly by ignoring material on record. It also cannot contravene relevant provisions for granting a decree. Even learned counsel for decree-holder felt great difficulty in supporting final decision, because decree-sheet prepared in the case is ambiguous, meaningless rather in-executable. Since evidence was brought on record therefore, even after closing the side it was obligatory for trial Court to consciously apply mind as regards available material, and on thorough reappraisal pass an appropriate order. Obviously on mere striking the defence, no blanket-authority is vested in the Court to automatically grant decree, ignoring the material already existing on record. Thus considering above factors, we find that decree, granted by the trial Court to be highly defective. Consequently we hold that:-- (a) Order to the extent of closing evidence is valid and same is upheld. (b) Since opportunity to record statement of attorney was not granted to appellant-Bank, therefore, final chance is allowed for examining attorney. (c) Decree as such, granted in favour of respondent is set aside. Appeal is partly accepted in above terms. Parties are however left to bear their own costs. Parties are directed to appear before trial Court on 19-7-1994. It is observed that appellant-Bank should produce attorney for recording his statement on said date, else consequences shall follow. Trial Court should decide the matter in accordance with law within two months. A.A./480/Q Appeal partly accepted.