PLJ 2008 SC 1059
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J. Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUHAMMAD ASLAM--Petitioner
versus
NAZIR AHMED--Respondent
C.P.L.A. No. 916 of 2007, decided on 1.1.2008.
(On appeal from the separate judgments dated 24.9.2007 in C.R. Nos. 425 of 2007 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, R. 3 & O. XV, R. 4--Words, "Proceed to decide forthwith"--Connotation--Held: The words, "Proceed to decide forthwith" do not mean "to decide the suit forthwith" or "to dismiss the suit forthwith"--Court may proceed with the suit notwithstanding either party fails to produce evidence etc., meaning thereby that in case to default to do a specific act, the next step required to be taken in the suit should be taken--Further held: Though the word, "forthwith" means, "without any further adjournment" yet it cannot be equated with the words "at once pronounce judgment" as used in O. XV, R. 4, C.P.C., where on issuance of summons for final disposal of the suit either party fails without sufficient cause to produce the evidence on which be relies.
[P. 1053] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, R. 3 & 2--Non-production of evidence on the adjourned date--Closure of evidence & dismissal of suit--Validity--Plaintiff was himself in attendance on the date when case was adjourned for the next day for orders--Held: Recourse to Order XVII, R. 2, C.P.C. could have been made, therefore Court, despite non-production of witness, ought to have asked the plaintiff to come in the witness box, instead of dismissing the suit forthwith--Petition dismissed.
[Pp. 1053 & 1064] B & C
1993 SCMR 2026, 1995 SCMR 773 & 1989 CLC 697, ref.
Syed Zulfiqar Abbas Naqvi, ASC and Mr. M.A. Zaidi, AOR for Petitioner.
Mr. S. Zia Hussain Kazmi, ASC & Mr. S. Zafar Abbas Naqvi, AOR for Respondent.
Date of hearing: 1.2.2008
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against judgment dated 24.9.2007 passed by a learned Single Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby revision filed by the petitioner against remand of case by the Additional District Judge Gujar Khan, was rejected.
2. Briefly stated, facts of the case as gathered from the available record are that Mst. Noor Bakht and others were the owners in possession of the land measuring 8 kanals 11 marlas in Khewat No. 5, Khata No. 10, situated in Revenue Estate Bokra, Tehsil Gujjar Khan. She transferred the said land in favour of the petitioner through Mutation No. 1008 dated 13.11.2003. Respondent Nazir Ahmad filed a suit for possession through pre-emption, which was contested by filing written statement before the trial Court. From divergent pleadings of the parties as many as ten issues were framed, whereafter the case was fixed for respondents/plaintiff's evidence on 19.1.2005. The respondent/ plaintiff did not produce evidence on some dates when it was adjourned to 27.9.2006 on which date counsel for the respondent/plaintiff did not appear, he, however, preferred an application for adjournment on the ground that he had moved application before the District Judge for transfer of the case. As evidence of the respondent/plaintiff was also not-available, therefore, the case was adjourned to 28.9.2007 on which date the Civil Judge by invoking the provision of Order XVII, Rule 3 CPC, closed evidence of respondent/plaintiff and while passing the judgment and decree dismissed the suit with special cost of Rs. 20,000/-. Being aggrieved from the said judgment and decree, the respondent/plaintiff filed an appeal before the District Judge, which was allowed and order dated 28.9.2006 of the trial Court was set-aside and the case was remanded for its decision afresh in accordance with law. The petitioner/defendant thus approached the Lahore High Court by way of civil revision which too, could not find favour and was dismissed vide the impugned judgment, hence this petition.
3. It has been contended by Syed Zulfiqar Abbas Naqvi, ASC learned counsel for the petitioner, that since the respondent/plaintiff failed to produce evidence despite numerous opportunities given and his intention from the very beginning was to delay the proceedings on one pretext or the other and on the said date, i.e. on 28.9.2006 again he could not produce evidence but filed another application with mala-fide intention, therefore, the trial Judge had no option but to decide the suit forthwith. He maintained that in the circumstances, the Additional District Judge was not justified to set-aside the impugned order and remand the case to the trial Court and the learned Judge in the High Court has also erred in rejecting the revision filed by the petitioner.
4. Mr. S. Zia Hussain Kazmi, ASC, learned counsel for the respondent while controverting the contentions raised by the learned counsel for the petitioner has submitted that in fact only one or two opportunities were afforded to the petitioner to produce his evidence. On 5.9.2006 he had sought permission to prove talb-i-ishhad through secondary evidence which was granted and the case was adjourned to 27.9.2006 on which date he sought adjournment on the ground that an application was filed in the Court of District Judge, for transfer of the case but the request was turned down and the learned trial Judge while closing his evidence dismissed the suit vide order dated 28.9.2006 without even examining the plaintiff who was present in Court on 27.9.2006. It is further contended that since the case on the said date i.e. 28.9.2006 when the suit was dismissed, was not fixed for evidence of the respondent/plaintiff, therefore recourse to Order XVII, Rule 3 CPC could not have been made and in such view of the matter the learned Additional Session Judge was justified in allowing the appeal and remand the case to the trial Court for its decision on merits.
5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused record of the case, minutely, with their assistance. Record reveals that issues in this case were framed on 12.10.2004, whereafter the case was adjourned to 19.1.2005 for evidence of the respondent/plaintiff on which date the evidence was not available however, adjournment was sought. The case therefore, was adjourned to 21.6.2005. On 21.6.2005 since evidence of the respondent/plaintiff was again not available therefore, the case was adjourned to 3.10.2005 on which date too, the case could not proceed as the Presiding Officer in the meantime was transferred. The case was then taken up on 4.1.2006 and last opportunity was afforded to the respondent/plaintiff to produce his evidence and the case was adjourned to 13.3.2006. On 13.3.2006 an application for production of notice of Talb-i-Ishhad was filed by the plaintiff/respondent copy whereof was handed over to the petitioner and the case was adjourned to 12.4.2006 for filing rejoinder to the said application. On the said date the case could not proceed as the learned Presiding Officer was again transferred. It was then adjourned to 30.5.2006 on which date it again could not proceed as the Presiding Officer was on leave. On 5.9.2006 it was fixed for evidence on the application for proving notice regarding Talb-i-Ishhad, through secondary evidence. The said application was allowed at a cost of Rs.100/- and the case was then adjourned to 27.9.2006 for evidence of the respondent/plaintiff. On 27.9.2006 since evidence was again not available therefore, the following order was passed:--
6. On 28.9.2006 the following order was passed:--
"Plaintiff counsel is not present. Clerk of the plaintiff's counsel present. Plaintiff's evidence is not present.
Plaintiff filed an application before this Court without any affidavit that he had moved a transfer application of the present case and sought adjournment. Case was adjourned for today when no evidence is present from the plaintiff's side. Learned counsel of the defendant submitted that plaintiff has been negligent to produce his evidence on various occasions and this course of action has been adopted by the defendant in order to prolong the proceedings.
2. Arguments heard. Record perused.
3. Vide detail judgment totled today, the right of plaintiff's evidence is closed U/O 17, Rule (iii) CPC and suit is dismissed for want of proof with special costs of Rs. 20,000/-. File be consigned."
It would be pertinent to mention here that the impugned order was set aside by the appellate Court inter-alia, for the reasons; that reasonable opportunity was not afforded to the plaintiff for production of evidence; that the case was not fixed for evidence of the respondent/plaintiff on 28.9.2006, when the penal provision of Order XVII, Rule 3 was invoked' and that since an application for transfer of the case was pending, therefore irrespective of the fact that proceedings in the case were not stayed the learned trial Court should have avoided to proceed against the respondent/plaintiff under the provision in question as law favours adjudication on merits. In order to appreciate the contention raised by the learned counsel for the petitioner it would be advantageous to have a glance at Rule 3 of Order XVII of the Civil Procedure Code which reads as under:
3. Court may proceed notwithstanding either party fails to produce evidence, etc. Where any party to a suit whom time has been granted failed to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to be further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.
It may be pointed out here that though under order XVII, Rule 3 CPC it has been provided that where sufficient cause is not shown for the grant of adjournment the Court may proceed to decide the suit forthwith but the words used in the provision in question "proceed to decide the suit forthwith" do not mean "to decide the suit forthwith" or "dismiss the suit forthwith". The said Rule simply lays down that the Court may proceed with the suit notwithstanding either party fails to produce evidence etc. meaning thereby that in case of default to do a specific act by any party to the suit, the next step required to be taken in the suit should be taken. Though the word "forthwith" means without any further adjournment yet, it can not be equated with the words "at once pronounce judgment, as used in Order XV, Rule 4 CPC where, on issuance of summons for final disposal of the suit either party fails, without sufficient cause, to produce the evidence on which he relies".
7. Since in the instant case it appears from record that on 27.9.2006 the plaintiff himself was in attendance when the case was adjourned for the next day i.e. to 28.9.2006 for orders, otherwise recourse to order XVII, Rule 2 could have been made, therefore, the trial Court, despite non-production of witnesses by the plaintiff, ought to have asked the plaintiff to come in the witness box instead of dismissing the suit forthwith. In this view we are fortified by the observations made in the case of Ghulam Rasool v. Rai Ghulam Mustafa and others (1993 SCMR 2026), wherein the petitioner had failed to lead evidence on different dates to which trial was successively postponed. He made statement before the Court that he did not want to produce evidence except his own affidavit which trial Court declined to receive on the ground that as the petitioner was present in person, he should appear in the witness box. After rejecting his prayer, the trial Court closed his evidence and then dismissed the suit for want of evidence. It was held that since there was nothing on record to show that after rejection of his request with regard to his affidavit, the learned trial Court before closing his evidence allowed him to appear as his own witness, as it was a right of a party to make a statement in support of his case therefore, the impugned judgment was not sustainable. The case of Ali Muhammad v. Murad Bibi (1995 SCMR 773), is another opt example wherein the suit filed by the petitioner was fixed for recording of his evidence. Counsel for the petitioner made a request for adjournment on the said date, which was declined and petitioner's right to cross-examine was closed. The trial Court on the very day passed the judgement even without providing opportunity to the respondent to produce his evidence. The above judgment was assailed in appeal before the Additional District Judge, which was accepted. Impugned judgement and decree was set aside and the case was remanded to the trial Court for trial in accordance with law by allowing right of cross-examination to the petitioner and then to produce his evidence. The petitioner impugned the said order through F.A.O., which was dismissed in limine. Leave was sought against the said order, which was refused and it was observed by this Court that since the learned trial Judge had not only closed the right of respondent to cross-examine the petitioner's witnesses and passed the decree on the same day, without providing opportunity to the respondent to produce his evidence, therefore, the impugned judgment was not sustainable. In the case of Abdul Wahid v. Ghulam Mujaddad (1989 CLC 697), too, the tenant was given some adjournments for production of evidence. His evidence was ultimately closed and ejectment was ordered. It was held that since on the said date the tenant and his one witness was present, therefore, Rent Controller was bound to record the statement of tenant and testimony of his witness and then to decide the ejectment application on merits after recording his findings on the issues. The case was remanded to Rent Controller with direction to dispose of matter after giving an opportunity to tenant to produce whole of his evidence.
8. Up shot of the above discussion is that we do not see any merit in this petition, which is accordingly dismissed and leave refused.
(J.R.) Leave refused.
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J. Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUHAMMAD ASLAM--Petitioner
versus
NAZIR AHMED--Respondent
C.P.L.A. No. 916 of 2007, decided on 1.1.2008.
(On appeal from the separate judgments dated 24.9.2007 in C.R. Nos. 425 of 2007 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, R. 3 & O. XV, R. 4--Words, "Proceed to decide forthwith"--Connotation--Held: The words, "Proceed to decide forthwith" do not mean "to decide the suit forthwith" or "to dismiss the suit forthwith"--Court may proceed with the suit notwithstanding either party fails to produce evidence etc., meaning thereby that in case to default to do a specific act, the next step required to be taken in the suit should be taken--Further held: Though the word, "forthwith" means, "without any further adjournment" yet it cannot be equated with the words "at once pronounce judgment" as used in O. XV, R. 4, C.P.C., where on issuance of summons for final disposal of the suit either party fails without sufficient cause to produce the evidence on which be relies.
[P. 1053] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, R. 3 & 2--Non-production of evidence on the adjourned date--Closure of evidence & dismissal of suit--Validity--Plaintiff was himself in attendance on the date when case was adjourned for the next day for orders--Held: Recourse to Order XVII, R. 2, C.P.C. could have been made, therefore Court, despite non-production of witness, ought to have asked the plaintiff to come in the witness box, instead of dismissing the suit forthwith--Petition dismissed.
[Pp. 1053 & 1064] B & C
1993 SCMR 2026, 1995 SCMR 773 & 1989 CLC 697, ref.
Syed Zulfiqar Abbas Naqvi, ASC and Mr. M.A. Zaidi, AOR for Petitioner.
Mr. S. Zia Hussain Kazmi, ASC & Mr. S. Zafar Abbas Naqvi, AOR for Respondent.
Date of hearing: 1.2.2008
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against judgment dated 24.9.2007 passed by a learned Single Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby revision filed by the petitioner against remand of case by the Additional District Judge Gujar Khan, was rejected.
2. Briefly stated, facts of the case as gathered from the available record are that Mst. Noor Bakht and others were the owners in possession of the land measuring 8 kanals 11 marlas in Khewat No. 5, Khata No. 10, situated in Revenue Estate Bokra, Tehsil Gujjar Khan. She transferred the said land in favour of the petitioner through Mutation No. 1008 dated 13.11.2003. Respondent Nazir Ahmad filed a suit for possession through pre-emption, which was contested by filing written statement before the trial Court. From divergent pleadings of the parties as many as ten issues were framed, whereafter the case was fixed for respondents/plaintiff's evidence on 19.1.2005. The respondent/ plaintiff did not produce evidence on some dates when it was adjourned to 27.9.2006 on which date counsel for the respondent/plaintiff did not appear, he, however, preferred an application for adjournment on the ground that he had moved application before the District Judge for transfer of the case. As evidence of the respondent/plaintiff was also not-available, therefore, the case was adjourned to 28.9.2007 on which date the Civil Judge by invoking the provision of Order XVII, Rule 3 CPC, closed evidence of respondent/plaintiff and while passing the judgment and decree dismissed the suit with special cost of Rs. 20,000/-. Being aggrieved from the said judgment and decree, the respondent/plaintiff filed an appeal before the District Judge, which was allowed and order dated 28.9.2006 of the trial Court was set-aside and the case was remanded for its decision afresh in accordance with law. The petitioner/defendant thus approached the Lahore High Court by way of civil revision which too, could not find favour and was dismissed vide the impugned judgment, hence this petition.
3. It has been contended by Syed Zulfiqar Abbas Naqvi, ASC learned counsel for the petitioner, that since the respondent/plaintiff failed to produce evidence despite numerous opportunities given and his intention from the very beginning was to delay the proceedings on one pretext or the other and on the said date, i.e. on 28.9.2006 again he could not produce evidence but filed another application with mala-fide intention, therefore, the trial Judge had no option but to decide the suit forthwith. He maintained that in the circumstances, the Additional District Judge was not justified to set-aside the impugned order and remand the case to the trial Court and the learned Judge in the High Court has also erred in rejecting the revision filed by the petitioner.
4. Mr. S. Zia Hussain Kazmi, ASC, learned counsel for the respondent while controverting the contentions raised by the learned counsel for the petitioner has submitted that in fact only one or two opportunities were afforded to the petitioner to produce his evidence. On 5.9.2006 he had sought permission to prove talb-i-ishhad through secondary evidence which was granted and the case was adjourned to 27.9.2006 on which date he sought adjournment on the ground that an application was filed in the Court of District Judge, for transfer of the case but the request was turned down and the learned trial Judge while closing his evidence dismissed the suit vide order dated 28.9.2006 without even examining the plaintiff who was present in Court on 27.9.2006. It is further contended that since the case on the said date i.e. 28.9.2006 when the suit was dismissed, was not fixed for evidence of the respondent/plaintiff, therefore recourse to Order XVII, Rule 3 CPC could not have been made and in such view of the matter the learned Additional Session Judge was justified in allowing the appeal and remand the case to the trial Court for its decision on merits.
5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused record of the case, minutely, with their assistance. Record reveals that issues in this case were framed on 12.10.2004, whereafter the case was adjourned to 19.1.2005 for evidence of the respondent/plaintiff on which date the evidence was not available however, adjournment was sought. The case therefore, was adjourned to 21.6.2005. On 21.6.2005 since evidence of the respondent/plaintiff was again not available therefore, the case was adjourned to 3.10.2005 on which date too, the case could not proceed as the Presiding Officer in the meantime was transferred. The case was then taken up on 4.1.2006 and last opportunity was afforded to the respondent/plaintiff to produce his evidence and the case was adjourned to 13.3.2006. On 13.3.2006 an application for production of notice of Talb-i-Ishhad was filed by the plaintiff/respondent copy whereof was handed over to the petitioner and the case was adjourned to 12.4.2006 for filing rejoinder to the said application. On the said date the case could not proceed as the learned Presiding Officer was again transferred. It was then adjourned to 30.5.2006 on which date it again could not proceed as the Presiding Officer was on leave. On 5.9.2006 it was fixed for evidence on the application for proving notice regarding Talb-i-Ishhad, through secondary evidence. The said application was allowed at a cost of Rs.100/- and the case was then adjourned to 27.9.2006 for evidence of the respondent/plaintiff. On 27.9.2006 since evidence was again not available therefore, the following order was passed:--
6. On 28.9.2006 the following order was passed:--
"Plaintiff counsel is not present. Clerk of the plaintiff's counsel present. Plaintiff's evidence is not present.
Plaintiff filed an application before this Court without any affidavit that he had moved a transfer application of the present case and sought adjournment. Case was adjourned for today when no evidence is present from the plaintiff's side. Learned counsel of the defendant submitted that plaintiff has been negligent to produce his evidence on various occasions and this course of action has been adopted by the defendant in order to prolong the proceedings.
2. Arguments heard. Record perused.
3. Vide detail judgment totled today, the right of plaintiff's evidence is closed U/O 17, Rule (iii) CPC and suit is dismissed for want of proof with special costs of Rs. 20,000/-. File be consigned."
It would be pertinent to mention here that the impugned order was set aside by the appellate Court inter-alia, for the reasons; that reasonable opportunity was not afforded to the plaintiff for production of evidence; that the case was not fixed for evidence of the respondent/plaintiff on 28.9.2006, when the penal provision of Order XVII, Rule 3 was invoked' and that since an application for transfer of the case was pending, therefore irrespective of the fact that proceedings in the case were not stayed the learned trial Court should have avoided to proceed against the respondent/plaintiff under the provision in question as law favours adjudication on merits. In order to appreciate the contention raised by the learned counsel for the petitioner it would be advantageous to have a glance at Rule 3 of Order XVII of the Civil Procedure Code which reads as under:
3. Court may proceed notwithstanding either party fails to produce evidence, etc. Where any party to a suit whom time has been granted failed to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to be further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.
It may be pointed out here that though under order XVII, Rule 3 CPC it has been provided that where sufficient cause is not shown for the grant of adjournment the Court may proceed to decide the suit forthwith but the words used in the provision in question "proceed to decide the suit forthwith" do not mean "to decide the suit forthwith" or "dismiss the suit forthwith". The said Rule simply lays down that the Court may proceed with the suit notwithstanding either party fails to produce evidence etc. meaning thereby that in case of default to do a specific act by any party to the suit, the next step required to be taken in the suit should be taken. Though the word "forthwith" means without any further adjournment yet, it can not be equated with the words "at once pronounce judgment, as used in Order XV, Rule 4 CPC where, on issuance of summons for final disposal of the suit either party fails, without sufficient cause, to produce the evidence on which he relies".
7. Since in the instant case it appears from record that on 27.9.2006 the plaintiff himself was in attendance when the case was adjourned for the next day i.e. to 28.9.2006 for orders, otherwise recourse to order XVII, Rule 2 could have been made, therefore, the trial Court, despite non-production of witnesses by the plaintiff, ought to have asked the plaintiff to come in the witness box instead of dismissing the suit forthwith. In this view we are fortified by the observations made in the case of Ghulam Rasool v. Rai Ghulam Mustafa and others (1993 SCMR 2026), wherein the petitioner had failed to lead evidence on different dates to which trial was successively postponed. He made statement before the Court that he did not want to produce evidence except his own affidavit which trial Court declined to receive on the ground that as the petitioner was present in person, he should appear in the witness box. After rejecting his prayer, the trial Court closed his evidence and then dismissed the suit for want of evidence. It was held that since there was nothing on record to show that after rejection of his request with regard to his affidavit, the learned trial Court before closing his evidence allowed him to appear as his own witness, as it was a right of a party to make a statement in support of his case therefore, the impugned judgment was not sustainable. The case of Ali Muhammad v. Murad Bibi (1995 SCMR 773), is another opt example wherein the suit filed by the petitioner was fixed for recording of his evidence. Counsel for the petitioner made a request for adjournment on the said date, which was declined and petitioner's right to cross-examine was closed. The trial Court on the very day passed the judgement even without providing opportunity to the respondent to produce his evidence. The above judgment was assailed in appeal before the Additional District Judge, which was accepted. Impugned judgement and decree was set aside and the case was remanded to the trial Court for trial in accordance with law by allowing right of cross-examination to the petitioner and then to produce his evidence. The petitioner impugned the said order through F.A.O., which was dismissed in limine. Leave was sought against the said order, which was refused and it was observed by this Court that since the learned trial Judge had not only closed the right of respondent to cross-examine the petitioner's witnesses and passed the decree on the same day, without providing opportunity to the respondent to produce his evidence, therefore, the impugned judgment was not sustainable. In the case of Abdul Wahid v. Ghulam Mujaddad (1989 CLC 697), too, the tenant was given some adjournments for production of evidence. His evidence was ultimately closed and ejectment was ordered. It was held that since on the said date the tenant and his one witness was present, therefore, Rent Controller was bound to record the statement of tenant and testimony of his witness and then to decide the ejectment application on merits after recording his findings on the issues. The case was remanded to Rent Controller with direction to dispose of matter after giving an opportunity to tenant to produce whole of his evidence.
8. Up shot of the above discussion is that we do not see any merit in this petition, which is accordingly dismissed and leave refused.
(J.R.) Leave refused.
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