1989 PLP 1425 (CLC)

It is a revision application under section 115, C.P.C. against the judgment and decree dated 9‑8‑1984 passed by the learned First Additional District Judge, Sukkur in Civil Appeal No.162/1982 (Wrongly stated in the Memo as Appeal No.163/1982) dismissing the appeal, and maintaining the judgment and decree dated 11‑8‑1982 and 16‑8‑1982, respectively passed by the learned Senior Civil Judge, Ghotki in First Class Suit No.2 of 1978 (wrongly mentioned in the Memo as Suit No.3/78). The facts giving rise to the above revision, briefly stated, are that the applicants on 4‑6‑1978 filed a First Class Suit "for possession through pre emption" in the Court of Senior Civil Judge, Ghotki against the respondents in respect of some agricultural land. Issues were settled by the learned Senior Civil Judge on 15‑5‑1979 when it was ordered that list of witnesses and documents to be filed within 7 days, and the matter was put off to on 9‑7‑1979 for final hearing. The suit was, however, adjourned from time to time for one reason or the other. Learned counsel for the applicants after, counting the dates from the case diary conceded that on as many as on 10 dates the suit was adjourned on the applicants request for their evidence. Ultimately, on 11‑8‑1982 when the suit come up lastly for applicants/plaintiffs' evidence it was dismissed under Order 17, Rule 3 C.P.C. for non‑production of evidence. The order being short is reproduced from the original file of the suit, as the learned counsel for the applicants, perhaps, to get admission order of the Revision in his favour, filed only a copy of the order passed on his application for adjournment and did not file copy of the order passed in suit following the rejection of application for adjournment, whereby the suit was dismissed under Order 17, Rule 3, C.P.C. that very day:‑ "Advocate for parties present. Plaintiff Inayat Hussain is present but he refused to give evidence. Learned counsel for plaintiff has filed adjournment application. Order thereon. Dismissed. The burden of 'proving issues Nos.l, 3 and 4 lies on the plaintiffs. On the last date of hearing final chance was granted to the plaintiffs. Today the plaintiffs have failed to appear and prove the above issues. I, therefore, dismiss the suit under Order 17, Rule 3, C.P.C. with no order as to costs. The applicants then filed appeal in the District Court, Sukkur which came up for hearing before the learned First Additional District Judge, Sukkur who agreeing with the judgment passed by the learned trial Court dismissed the said appeal by his judgment dated 9‑8‑1984. The operative part of the judgment is reproduced as under:‑ "For the foregoing reasons after going through the record of the learned lower court and the impugned order and the provisions of Order 17, Rule 3, C.P.C. I hold that the plaintiffs have persistently failed to adduce their evidence in spite of the fact that several chances were granted to them (plaintiffs) on their own applications to produce evidence and that on the last date of hearing too they (plaintiffs) were granted time to produce their evidence on their own application. I, therefore being supported by the law of P L D 1981 Supreme Court 474, and P L D 1971 Supreme Court 434, of the view that the appeal is liable to be dismissed. I accordingly dismiss the appeal with no order as to costs." Mr. Farkhand Ali, learned counsel for the applicants submits that provisions of Order 17, rule 3, C.P.C. were not attracted to the case. Learned trial Judge should have dismissed the suit under Order 17, Rule 2, C.P.C. Reliance is placed on Dalel Khan v. Province of West Pakistan P L D 1970 Quetta

79. I am afraid the cited case is distinguishable on facts. In the said case the issues were framed by the trial Judge on 31‑7‑1968 and it was ordered to put up the matter on 15th August, 1968 for filing the list of witnesses. On that date the suit was dismissed as no list of witnesses had been filed as on that date the plaintiffs were absent and no list for witnesses had been filed. The order of trial judge dismissing the suit under Order 17, Rule 3, C.P.C. was set aside as the case was not fixed for production of evidence, and the suit was dismissed only for failure of the plaintiffs to appear and file list of witnesses or produce them in Court as promised on the previous date. On the other hand, learned counsel for respondents 3 to 5 and 6A to 6 (i) referred to Executive Engineer, Peshawar v. Tour Muhammad 1983 S C M R

619. The relevant observation is reproduced as under:‑ "This order obviously is made under Order XVII, rule 3 of the C.P.C. 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." It is settled law that where time has been granted at the instance of a party to do any of the things enumerated in Rule 3, of Order 17, C.P.C. and such party defaults in performing that act for which time was granted, the Court can proceed to decide the suit on merits forthwith. In such cases the only thing which is to be looked into is whether the conditions laid down in Rule 3 of Order 17 are present or not. In the instance case the applicants were provided with utmost accommodation by the trial Court to enable them to produce their evidence about a dozen of times. In fact, three years passed away after framing issues, but the plaintiffs failed to examine even themselves. On the day when the suit was dismissed for non‑production of the evidence on behalf of the applicants, for which it was specifically adjourned, as also on other dates, as such the requirement of law seems to have been fully fulfilled. The suit was therefore, rightly dismissed under Order 17, rule 3, C.P.C. Learned counsel for the respondents further relied on Muhammad Mahmood v. Ghulam Rasool 1987 S C M R 952 and Muhammad Amir Oasim v. Muhammad Idrees (1988 S C M R 549). In the first case (1987 S C M R 952) the relevant observations of the Hon'ble Supreme Court read as under:‑ "We find no merit in this contention. The petitioner had about three years to produce his evidence. No greater indulgence could be shown to him. He failed to take advantage of the many opportunities given to him in this regard. The learned trial Court was, therefore, fully justified in closing his evidence. This petition is without any merit and is hereby dismissed." In the second case 1988 S C M R 549 petition for special leave to appeal from the order dated 18‑7‑1987 of the Lahore High Court was refused, whereby, it refused to interfere with the order of the trial Court closing the evidence of the petitioner in a suit for specific performance of an agreement to sell brought by the respondents. The above two authorities are on all fours applicable to the facts of the present case. The issues were settled on 15‑5‑1979 and the case was adjourned to 9‑7‑1979 for final hearing but was adjourned from time to time on the request of the plaintiffs to produce their evidence. Lastly, on 21‑6‑1982 when the matter was fixed for plaintiffs' evidence it was adjourned to 11‑8‑1982 again on their request but having produced no evidence on that date the learned Judge has rightly exercised his discretion in refusing further adjournment and dismissed the suit under Order 17, Rule, 3 C.P.C. for failure to produce evidence, as already ordered. On 1‑8‑1982 if the wife of one of the plaintiffs was sick as alleged, the other two plaintiffs could have produced themselves to be examined. In fact the' plaintiff Inayat Hussain, present in Court, refused to give evidence. None of the plaintiffs, witnesses were produced or present in Court, or even summoned. I am, therefore, of the view that the judgments and decreed of the two Courts below suffer from no infirmity in law. There also seems to be no material irregularity calling for any interference by me. I. therefore, dismiss the revision application with costs to respondents Nos. 3 to

6. A.A./R‑85/K. Revision dismissed.