P L D 2011 Lahore 217 (PLP)

SYED MANSOOR ALI SHAH, J.--Brief facts of the case are that the petitioner filed a suit for possession through pre-emption on 9-12-2006. Vide impugned judgment and decree dated 19-5-2010 the right of the plaintiff to produce evidence was closed by the trial court.

2. The petitioner preferred an appeal against the said judgment and decree before the learned Additional District Judge, Samundri who dismissed the appeal vide judgment dated 29-11-2010. The petitioner has assailed both the above orders in the instant revision petition.

3. Counsel for the petitioner contends that only two opportunities were granted to the petitioner to lead evidence and on the third date of hearing the right of the petitioner to produce evidence was closed. He also contended that on several dates the case was adjourned and there was no objection raised by the other side on the grant of adjournment and, therefore, the said dates cannot be counted for the purpose of Order XVII, Rule 3 of C.P.C. and in support of his contention has placed reliance on Syed Tasleem Ahmed Shah v. Sajawal Khan, and others (1985 SCMR 585), Muhammad Hussain and 5 others v. Akram Baig and 3 others (PLD 1988 Lahore 183), and Muhammad Bashir v. Muhammad Ramzan and another (2008 CLC 252). He further contended that on 1-3-2010, 17-4-2010 and 27-4-2010 there was strike by the Bar Association, Samundri and referred to Certificate dated 7-12-2010 issued by the Bar Association Samundri, hence the said dates cannot be counted for the purposes of default.

3. I have gone through the record of the case. The order sheet of the learned trial court placed before me shows that the petitioner has failed to produce evidence on 21-11-2009, 24-12-2009, 28-1-2010, 1-3-2010, 29-3-2010, 17-4-2010, 27-4-2010 and 19-5-2010. According to the judgment dated 29-11-2010 of the learned Additional District Judge Samundri, the petitioner failed to adduce evidence even prior to 21-11-2009 i.e., 24-9-2007, 3-12-2007, 18-10-2008, 15-10-2009 (order sheet of these dates is not before me but this fact has not been controverted by the counsel for the petitioner). Out, of above dates, the copy of the order sheet of the trial court before me reveals that on 1-3-2010 counsel for the petitioner was directed, to produce evidence on the next date. On 17-4-2010 the petitioner was granted last opportunity to produce evidence while on 27-4-2010 the petitioner was also given a warning and last opportunity to produce evidence on the next date i.e., 19-5-2010. In addition to the above, the order sheet reveals that adjournments granted from 21-9-2009 onward were on the request of the petitioner to lead evidence on the next date. Orders from 21-11-2008 to 19-5-2010 arc reproduced for convenience: "Present: Counsel for the parties. Evidence of plaintiff is not available. Request far adjournment. As per request of counsel for plaintiff now to come out for evidence of plaintiff for 24-12-2009. Announced: MUHAMMAD IMRAN KHAN, 21-11-2009 Civil Judge, Samundri. Present: Counsel fir the parties. Evidence of plaintiff is not available. Request for adjournment. As per request of counsel for plaintiff now to come up for evidence of plaintiff for 28-1-2010. Announced: MUHAMMAD IMRAN KHAN, 24-12-2009 Civil Judge: Samundri. Present: Counsel for the parties. Evidence of plaintiff is not available. Request for adjournment. As per request now to come up for evidence of plaintiff for 1-3-2010. Announced: MUHAMMAD IMRAN KHAN, 28-1-2010 Civil Judge, Samundri Muhammad Imran Khan, Civil Judge, Samundri. ORDER 27-4-2010 Present: Counsel for the parties. Evidence of plaintiff is not available .Request for adjournment. As per request now to come up for evidence of plaintiff with the warning as last opportunity for 19-5-2010. Announced: MUHAMMAD IMRAN KHAN, 21-11-2009 Civil Judge, Samundri. ORDER 19-5-2010. 8-30 a. m. Present: counsel for the parties. Evidence of plaintiff is not available. Counsel for the plaintiff is directed to produce evidence today, within court time. File be placed before the court at 1-00 P.M. Announced: MUHAMMAD IMRAN KHAN, 19-5-2010 Civil Judge, Samundri. 1-00 PM Present: Counsel for the parties. Evidence of plaintiff is not available. Counsel for the plaintiff is directed to produce evidence today within court time. File be placed before the court at 3-30 P.M. Announced: MUHAMMAD IMRAN KHAN 19-5-2010 Civil Judge. Sumandri. 3-30 A.M. Present: Counsel for the parties. Evidence of plaintiff is not available. Repeated opportunities have been given to the plaintiff to produce evidence in support of his version but plaintiff could not produce any evidence before the court despite several opportunities therefore, right of plaintiff to produce evidence is hereby closed. Vide my separate detailed judgment in English of even date, instant suit is hereby dismissed due to want of evidence. No order as to cost. Decree sheet be drawn. File be consigned to the record room after its due completion. Announced: MUHAMMAD IMRAN KHAN 19-5-2010 Civil Judge, Samundri.-

4. Order XVII Rule 3 of C.P.C. reads as Follows:-- "(3) Court may proceed notwithstanding either party fails to produce evidence, etc.--Where any party to a suit to whom time has 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."

5. In the above provision, "Where any party to a suit to whom time has been granted..." means where time has been granted by court for a particular act e.g., either to produce evidence or to cause the attendance of witnesses or to perform any other act necessary for further progress of the suit for which time has been allowed. On the other hand where an adjournment simpliciter is seraght and is also not opposed by the other side and the case is posted for a next date, time has not been allowed for any particular act but an adjournment in routine has been granted, I therefore, such a simple adjournment with no specific act to be done on the next date will not he time allowed or time granted for the purposes of Order XVII, Rule 3, of C.P.C. However, if the adjournment is granted with a particular direction specifying the act to be done on the next date of hearing, even it is not opposed by the opposite counsel, the party is bound to do the said act and default in doing so will attract the provisions of Order XVII, Rule 3, of C.P.C. In words of Wahiduddin Ahmed, J. speaking for Supreme Court of Pakistan in Maulvi Abdul Aziz Khan v., Mst. Shah Jahan Begum and 2 others (PLD 1971 .SC 434) observed: "It will be seen that his rule applies to a case where time has been granted to a party at his instance, to produce evidence, or to cause the attendance of witnesses or to perform any other act I necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted." (Emphasis supplied)

6. Aslam Riaz Hussain, J. (as the then was) held in Shahid Hussain v. Lahore Municipal Corporation (PLD 1981 SC 474) as follows:-- "It is clear from the wording of the said rule that on the failure of a party to produce its evidence or to do any other act necessary for the purpose of the case, for which time had been allowed to, him, the Court shall proceed to decide the suit forthwith. "(Emphasis supplied)

7. Mian Burhanuddin Khan, J. speaking for Supreme Court of Pakistan in Executive Engineer, Peshawar v. Messrs Tour Muhammad and Sons and 4 others (1983 SCMR 619) stated that:-- "This Rule applies where a party who is granted time to perform some act, not only fails to do so but is also absent on the date to which the hearing is adjourned. It is immaterial whether the adjournment was granted at the instance of the party or for other reasons. Where a defendant does not appear at an adjourned hearing, this rules applies irrespective of whether he appeared at the First hearing or not and the Court has to exercise its discretion; its hands are not tied by the previous ex parte order." (Emphasis supplied)

8. In the instant case the adjournment was granted for a purpose i.e., for the petitioner to lead evidence. Additionally, the adjournments were granted on the request of the petitioner to do a particular act i.e., to laid evidence. Further, warning and two last opportunities were also given. Failure of the petitioner to lead evidence not on one date but on 11 dates, surely impedes the further progress of the suit and, therefore, fully attracts Order XVII, Rule 3 of C.P.C.

9. Reliance of the petitioner on Syed Tasleem Ahmed Shah v. Sajawal Khan and others (1985 SCMR 585), Muhammad Hussain and, 5 others v. Akram Baig and 3 others (PLD 1988 Lahore 183) to submit that if adjournment is granted and, the same is not opposed by counsel for the other side, the time so granted does not attract Order XVII; Rule 3 of C.P.C. is misplaced in the present circumstances of the case.

10. In Syed Tasleem Ahmed Shah's case the facts were that counsel for the petitioner sought an adjournment and the counsel for the respondent stated that he has no objection to the adjournment and the court adjourned the case to the next date with a warning that no other adjournment will be granted. In said case the adjournment was not granted with a specific direction to do a specific act on the next date of hearing and was a mere adjournment. Similarly, in Muhammad Hussain's case the request for adjournment was made jointly and, therefore, it was held that such like adjournment does not attract Order XVII, Rule 3 of C.P.C. Speaking for this Court, Muhammad Ilyas, J. held:-- This order reveals that on 4th September, 1975, the case was adjourned to 15th October, 1975 at the request of learned counsel for the parties, without making any mention of the availability or otherwise of the respondents evidence on the said date, that is, 4th September, 1975. Since 15th October, 1975 was not fixed for the evidence of the respondents at their request alone, their evidence could not be closed as done by the learned Civil Judge. In my opinion the request contemplated by Order XVII, Rule 3 of the Code of Civil Procedure, is not joint request of the parties, but the request of defaulting party only. (Emphasis supplied)

11. It is important to further elaborate that Where "mere adjournment" is requested and not opposed by the other side, such an adjournment will also not attract Order XVII, Rule 3 of C.P.C. This is because no specific act is to be done by the party to the suit seeking the adjournment and cannot be said to affect the progress of the suit. However, if an adjournment has been granted on the specific request of the party to do a particular act or if a direction of the court has been given to do a particular act on the next date of hearing, absence of objection from the other party is immaterial. Reliance is placed on Executive Engineer, Peshawar v. Messrs Tour Muhammad and Sons and 4 others (1983 SCMR 619). It would be odd to imagine that series of adjournments can be granted just because the party from the other side does not raise any objection. Like this role of the court is reduced to that of a bystander. This would stultify adjudication of cases and make a G mockery of Order XVII, Rule 3, C.P.C. This cannot be the intent of the law. Order XVII, Rule 3 of C.P.C. will only be applied where a specific act was to be done on the next date of hearing, and the party failed to do so, without any sufficient cause, therefore, impeding the progress of the suit. Facts of Syed Tasleem Ahmed Shah v. Sajawal Khan and others. (1985 SCM R 585) are not attracted in the present case. Reliance with advantage is placed on Executive Engineer, Peshawar v. Messrs Tour Muhammad and Sons and 4 others (1983 SCMR 619), Syed Akhlaque Hussain v. Habib Imail Bajwa, Advocate (1974 SCMR 504), Shahid Hussain v. Lahore Municipal Corporation (PLD 1981 SC 474), Tasleem Khan v. Sher Ghulam and others (2010 SCMR 1422), Muhammad Aslam v. Nazir Ahmed (2008 SCMR 942), Maulvi Abdul Aziz Khan v. Mst. Shah. Jahan Begum and 2 others (PLD 1971 SC 434) Muhammad Hussain and 5 others v. Akram Baig and 3 others (PLD 1988 Lahore 183) and Mrs. Asmat Begum v. Badiuzzaman Khan (2002 CLC 71).

12. In view of the above, I find no illegality in the impugned judgments of the courts below. The conduct of the petitioner is deplorable and fails to attract the revisional jurisdiction of this Court. The impugned judgments and decrees are, therefore, maintained and this petition is dismissed in limine. M. A.K./M-115/L Petition dismissed.