2024 CLS 3
Other citations: 2022 LHC 3672 = 2024 CLC 29
[Lahore High Court]
Before Sultan Tanvir Ahmad, J
Atta Elahi—Petitioner
versus
Allah Bachaya and others—Respondents
Civil Revision No. 554-D of 2020, heard on 1st April, 2022.
HEADNOTE
Civil Procedure Code (V of 1908) —
— O. XVII, R. 3 — Court may proceed notwithstanding either party fails to produce evidence — Scope — Order XVII, R. 3, CPC clearly reflects that when specific date of hearing is fixed or time is granted to any party of the suit, to produce evidence or to cause attendance of the witnesses or to perform other act(s) necessary for the progress of the suit, it becomes obligation of the party concerned to take efficient measures towards the same and when this step is to produce evidence or cause the attendance of the witnesses, hardly any choice is left with the litigants but to comply with the orders — The avoidance of order to produce evidence or to cause attendance of witnesses, the Court is required to proceed further and in appropriate circumstances / cases, the Court is fully empowered to settle the issue and decide the case. [Para. No. 10]
Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaquat Ali and others (2014 SCMR 637); Moon Enterprises CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another (2020 SCMR 300) relied.
Rana Tanveer Khan v. Naseer-ud-Din and others (2015 SCMR 1401) referred.
Sardar Muhammad Akram Balouch, Advocate for petitioner.
Ahmad Mansoor Chishti, Advocate for respondents.
Date of hearing: 1st April, 2022.
JUDGMENT
Sultan Tanvir Ahmad, J:—Present civil revision filed under section 115 of the Code of the Civil Procedure, 1908 (the ‘Code’) is directed against the judgment and decree dated 23.11.2019 passed by learned Additional District Judge, Bahawalpur, whereby the appeal against judgment and decree dated 24.06.2019 passed by learned Civil Judge, Bahawalpur has been dismissed.
2. At the joint request of the learned counsel for the parties, this case is being treated as pacca case.
3. The facts, necessary for the disposal of the present petition, are that on 07.04.2014 petitioner filed suit for declaration claiming ownership of 10 marlas house, as further described in the suit (hereinafter called as the ‘Suit Property’). This suit was contested by respondent No. 1 by filing contesting written statement whereas, respondent No. 2 filed conceding written statement and respondent No. 3 partly refuted the fact narrated in the suit. The learned trial Court framed the following issues, on the disputed questions of law and facts emerging from the pleadings, vide order dated 15-04-2017:-
1. Whether the plaintiff is owner in possession of disputed house vide agreement of Tamleek executed by defendant No. 2 in her favour on 05.04.2014? OPP.
2. Whether defendant No. 1 is in illegal possession over half portion of disputed property measuring 05-marlas? OPP.
3. Whether plaintiff is entitled to a decree for declaration and possession along with consequential relief as prayed for regarding suit property? OPP.
4. Whether plaintiff has got no cause of action and locus-standi to sue the defendant No. 1? OPD-1.
5. Whether defendant No. 1 is owner in possession to the extent of half portion of disputed property for last 23-years? OPD-1.
6. Whether suit of the plaintiff is false, frivolous and liable to be dismissed with special costs u/s 35-A CPC? OPD-1.
7. Relief.
4. Upon failure to produce evidence, on several dates of hearing, the learned trial Court closed the right of the petitioner to produce evidence, invoked the provision of Order XVII Rule 3 of the Code and proceeded to decide the suit forthwith. The learned trial Court gave issue wise findings and eventually dismissed the suit with costs on 24.06.2019. This judgment was assailed, by the petitioner, through civil appeal No. 90 of 2019 dated 04.07.2019 and the learned Appellate Court vide its detailed judgment dated 23.11.2019 dismissed the appeal and upheld the decision of the learned trial Court. Aggrieved from the same the present revision petition has been filed.
5. Sardar Muhammad Akram Balouch, Advocate, the learned counsel for the petitioner while relying upon cases titled “Syed Tasleem Ahmad Shah Versus Sajwala Khan etc.” (1985 SCMR 585), “Muhammad Aslam Vs. Nazir Ahmad” (2008 SCMR 942), “Rana Tanveer Khan Vs. Naseer-ud-Din and others” (2015 SCMR 1401) and “Mst. Sadia Jamshaid Vs. Province of Punjab and another” (2020 CLC 1972), has argued that as the petitioner-plaintiff was present before the learned trial Court, on the last date of hearing, therefore, recourse under Order XVII Rule 1 of the Code should have been adopted; that before closing the right of evidence the learned trial Court was required to invite the petitioner-plaintiff to give her evidence before proceeding further with the matter. The learned counsel for the petitioner has further argued that by curtailing the evidence of the petitioner, the learned Courts below have denied the substantial rights of the petitioner on the basis of technicalities; that the impugned judgments and decrees are contrary to Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
6. Conversely, Mr. Ahmad Mansoor Chishti, learned counsel for respondents has opposed this revision petition and it has been argued that the clear warning was given before adopting penal measures under Order XVII Rule 3 of the Code; that the adjournments were granted, on successive dates of hearings, at the request of the petitioner and sufficient material was available with the Court to give findings as to the issues, hence the two requirements of law: (i) the adjournment must have been at the instance of the party, and (ii) there must be material on record for the Court to proceed to decide the suit, were completely fulfilled, therefore, no irregularity or illegality has been committed by the learned Courts below. In this regard, the learned counsel has relied upon case titled “Brojendra Nath Ganguly Vs. Promatha Bhusan Dev and others” (AIR 1933 Calcutta 412).
7. I have heard the arguments of the learned counsel for the parties and with their able assistance the record has been perused.
8. The order sheet appended with this civil revision reflects that the issues were framed on 15.04.2017 and the provisions of Order XVII Rule 3 of the Code were invoked on 24.06.2019. In this period, spreading over two years, the case was fixed for numerous dates of hearing, out of which about seventeen (17) adjournments were sought by the petitioner’s side for the purposes of examination of their witnesses. There is hardly any adjournment sought by the respondent side. On several hearings not just warnings were given but thrice the cost was imposed on the petitioner for failure to examine the witnesses. It is apparent from the record that to delay the matter the petitioner and her lawyer have adopted a strategy whereby on some dates of hearing the learned counsel absented himself and whenever he was available, the witnesses were not present. This left the learned trial Court with barely any alternative but to proceed and decide the case, as per the law.
9. Order XVII of the Code reads as follows:-
“1. xxx
2. xxx
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 witness, 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”.
4. xxx
5. xxx.
(Emphasis supplied)
10. The afore reproduce provision of law clearly reflects that when specific date of hearing is fixed or time is granted to any party of the suit, to produce evidence or to cause attendance of the witnesses or to perform other act(s) necessary for the progress of the suit, it becomes obligation of the party concerned to take efficient measures towards the same and when this step is to produce evidence or cause the attendance of the witnesses, hardly any choice is left with the litigants but to comply with the orders. The avoidance of order to produce evidence or to cause attendance of witnesses, the Court is required to proceed further and in appropriate circumstances / cases, the Court is fully empowered to settle the issue and decide the case. The Honourable Supreme Court of Pakistan in various cases including “Syed Tahir Hussain Mehmoodi and others versus Agha Syed Liaquat Ali and Others” (2014 SCMR 637) and “Moon Enterprises CNG Station, Rawalpindi versus Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another” (2020 SCMR 300) has already issued the comprehensive guideline, about the circumstances and instances, when it befalls unjust to pass any order leaning in favour of delinquent litigants causing delays in further progress of the case.
11. Now coming to the stance of Sardar Muhammad Akram Balouch, learned counsel for the petitioner, who has argued that since the plaintiff was present before the learned trial Court, on the day when judgment was passed, therefore, without inviting the plaintiff to record her evidence, the decision on the merits is illegal. In this regard, it can be noticed that the Honorable Supreme Court of Pakistan in “Syed Tahir Hussain Mehmoodi case (Supra) and case titled “Rana Tanveer Khan Vs. Naseer-ud-Din and others” (2015 SCMR 1401), while requiring the Courts to invite the present witnesses, to record the evidence before decision on merits, has also settled that the Courts must ensure that when the penal provisions of Order XVII Rule 3 of the Code squarely applies to the case of a delinquent litigant then no concession should be shown to such litigant nor any lenient view in his favour should be adopted. Here it is beneficial to reproduced paragraph No. 4 of Syed Tahir Hussain Mehmoodi and others case (Supra):-
“4. Notwithstanding our refraining to interfere in the matter on account of the above, we are of the candid view that provisions of Order XVII, Rule 3, C.P.C. are penal in nature and as per the settled law such provisions should be strictly construed and applied, therefore once the case of a delinquent litigant squarely falls within the purview and mischief of the law (ibid) then neither any concession should be shown to such litigant nor a lenient view favouring him should be resorted to; this should not even be permissibly done on the touchstone of exercise of discretionary power of the Court and/or on the approach that technicalities of procedure should not be allowed to impede the interest of justice, and/or that the litigants should not be knocked out on technical grounds, and that adversarial lis should be settled on merits. If such approach is liberally followed and resorted to there shall be no discipline in the adjudication of the civil litigation and the delinquent whose case though is squarely hit and covered by the penal provisions of Order XVII, Rule 3, C.P.C. would be given a chance to his advantage and to the disadvantage of his opposing side. This is not the spirit of the law at all. It may not be out of place to mention here that to apply and to adhere to law is not a mere technicality, rather it is duty cast upon the court as per Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 to do so. Thus where Order XVII, Rule 3, C.P.C. is duly attracted, the Court has no option except to take action in accord therewith”.
(Emphasis Supplied)
12. The august Supreme Court of Pakistan Moon Enterprises CNG Station, Rawalpindi case (Supra) has further discouraged the trend of granting successive opportunities for production of evidence without sufficient and just cause. Undue adjournments, causing delay in proceedings without any valid or legitimate reason, are firmly prohibited. It will be advantageous to reproduce the following extract from Moon Enterprises CNG Station, Rawalpindi case (Supra):-
“In our view it is important for the purpose of maintaining the confidence of the litigants in the court systems and the presiding officers that where last opportunity to produce evidence is granted and the party has been warned of the consequences, the court must enforce its order unfailingly and unscrupulously without exception. Such order would in our opinion not only put the system back on track and reaffirm the majesty of the law but also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reason. Where the Court has passed an order granting the last opportunity, it has not only passed a judicial order but also made a promise to the parties to the lis that no further adjournments will be granted for any reason. The Court must enforce its order and honour its promise. There is absolutely no room or choice to do anything else. The order to close the right to produce evidence must automatically follow failure to produce evidence despite last opportunity coupled with a warning. The trend of granting (Akhri Mouqa) then (Qatai Akhri Mouqa) and then (Qatai Qatai Akhri Mouqa) make a mockery of the provisions of law and those responsible to interpret and implement it. Such practices must be discontinued, forthwith.”
(Emphasis Supplied)
13. As already discussed, about seventeen (17) opportunities for the purpose of examination of witnesses and / or production of evidence are granted, at the request of the petitioner’s side. On 14.12.2017 when the witnesses were present, the portioner-lady herself addressed the Court and sought an adjournment while stating that her learned counsel was busy in other cases, upon which very last opportunity was granted by the learned Court, in her presence. On 10.02.2018 again the learned counsel requested for the adjournment when his witnesses were not available.
14. The above position persisted for several subsequent dates of hearing; on some of the said dates either only partial evidence was available or the learned counsel used to be absent. This continued until 09.05.2019. The reading of the order sheet reflects that somehow the learned trial Court remained helpless, waiting for the petitioner or her evidence or her learned counsel and even imposing the minor costs and / or penalties could not be of assistance, when the following order was passed:-
“کونسل فریقین حاضر۔ گواہان حاضر۔
کونسل مدعیہ بیانی ہے کہ وہ بوجہ رمضان المبارک کمی وقت عدالت کی وجہ سے شہادت کیلئے تیار نہ ہیں۔ التوا دی جاوے۔ کونسل مدعاعلیہم شدید معترض ہیں بغرض انصاف گواہان کو پابند کیا جا کر صرف ایک قطعی آخری موقع دیا جاتا ہے۔ شہادت آئیندہ پیشی پر قلمبند نہ کرانے کی صورت میں کلوز کر دی جائیگی۔ ملتوی ہوکر بتقرر 20.06.19 پیش ہوے۔ سنایا گیا۔”
15. The case was fixed for 20.06.2019 however, regrettably the same position continued, when the learned trial Court had to observe that the petitioner side despite warning is not willing to get the evidence recorded but somehow once again absolute last opportunity (‘حتمی قطعی آخری موقع‘) was granted to get the evidence recorded on 24.06.2019. It is apparent from record that cautions already taken by the learned trial Court were more than even permissible by law settled by the Honourable Supreme Court. Finally, on 24.06.2019 at 8:20 a.m. when the petitioner was present in person, she was reminded about the fact that this was the last chance for the evidence and the case was fixed at 09:30 a.m. when petitioner opted to disappear, making the Court wait until 02:45 p.m. The learned trial Court was left with no option but to give following finding and then passing the judgment and decree:-
“2:45 P.M.
Now it is 2:45 P.M the case is called time and again after 09:30 A.M but the PWs were not in attendance. Now the plaintiff has turned up along with her PWs and she has made a request for an adjournment which is hotly opposed on behalf of the defendant No.1. Now only 45 minutes are remaining, the plaintiff was asked to produce her counsel and adduce the evidence but she made a request for an adjournment and submitted that her counsel is busy before some other courts. The suit in hand belongs to 2014 wherein issues were settled on 15.04.2017. After excluding the strikes etc. 16 clear opportunities were given to the plaintiff and on all dates of hearing adjournments were obtained by plaintiff herself one and the other pretext. Although, on most of the date of hearing the witnesses of the plaintiff were in attendance but the interlocutory orders reflects that the date of hearing were obtained by the plaintiff herself and not by the other side.
As I have discussed above that on last date of hearing the date of hearing was fixed for today with time i.e. 9:30 a.m. Now court time is about to end and the plaintiff is not willing to examine her witnesses, therefore, this court has left with no other option except to invoke the provision of Order 17 Rule 3 CPC, 1908. Hence, the right of the plaintiff for examining the PWs is closed”.
16. Sardar Muhammad Akram Balouch, learned counsel for the petitioner during the course of arguments has repeatedly relied upon case titled and “Syed Tahir Hussain Mehmoodi case (Supra), but I am afraid that the said judgment does not support the interpretation of Order XVII Rule 3 of the Code put forth by the learned counsel or the petitioner. In my opinion, the learned trial Court before invoking the provisions of Order XVII Rule 3 of the Code and passing the judgment has already taken excessive precautions and granted more than essential opportunities to the petitioner.
17. The learned counsel for the petitioner miserably failed to make out any case of want of exercise of jurisdiction or excess of jurisdiction or illegality requiring interference in the concurrent judgments and decrees passed by the learned Courts below. Consequently, the present civil revision is dismissed, with no order as to costs.
Petition dismissed