2022 C L C 1966
[Balochistan]
Before Rozi Khan Barrech, J
CHANGAZ KHAN---- Petitioner
Versus
MIAN KHAN and 2 others ----Respondents
Civil Revision No.258 of 2021, decided on 25th October, 2021.
(a) Civil Procedure Code (V of 1908) ---
----O.XVII, Rr. 2 & 3 ---Constitution of Pakistan (1973), Art.10A ---Suit for pre -emption,
declaration, temporary and permanent injunction ---Petitioner/plaintiff contended that his
right to produce evidence was closed by trial Court; that provisions of O.XVII, R.3 of the
Civil Procedure Code were discretionary and not mandatory; that no opportunity to produce
evidence was granted to him; that technicalities must not come in the way of substantial justice; and that non- production of witnesses was not intentional as they were out of town---
Validity ---Trial Court ought to have offered the petitioner an opportunity to testify before the
Court while closing his right to adduce remaining evidence which legal obligation had not been fulfilled by not affording such opportunity before clo sing his evidence ---Petitioner had
been deprived of his fundamental right of making statement to prove the contents of his case -
--Trial Court proceeded to decide the case without having any material before it and had acted in its jurisdiction illegally/with material illegality ---Nothing in the record shown in the
impugned order of Trial Court that matter was adjourned on the previous date of hearing on the request of the petitioner as the Court did not observe that it was the last chance for recording evide nce of the petitioner/plaintiff ---Valuable right of the petitioner was involved
in the suit which could not be allowed to be defeated in law on mere technical point as courts were to avoid technicalities in deciding disputes between the parties and adhere to the merits of the case---Revision petition was accepted and Trial Court was directed to re -adjudicate the
matter by granting two opportunities to the petitioner to produce his complete evidence subject to payment of the cost of Rs.30,000/ - to the respondent/defendants.
Tanzeem Corporation Gupis/Yasin v. Momin Shah 2016 CLC 1490 rel.
(b) Civil Procedure Code (V of 1908) ---
----O.XVII, Rr.2 & 3 ---For proceeding according to the R.3 of O.XVII, Civil Procedure
Code, 1908, there must be one of the given elem ents: (i) the adjournment must have been on
the instance of party; (ii) there must be material on record for the Court to pursue/decide the case.
(c) Civil Procedure Code (V of 1908) ---
----O.XVII, Rr. 2 & 3--- Right of a party to produce evidence could not be closed under
O.XVII, R.3 of Civil Procedure Code for non- production of evidence where the case on the
previous date was not adjourned at the request of such party.
(d) Civil Procedure Code (V of 1908) ---
----O.XVII, Rr.2 & 3 ---Pre-requisites for applic ation of ---For application of R.3 of O.XVII,
Civil Procedure Code certain conditions must co- exist, viz.: (i) adjournment must have been
granted to the party at his request; (ii) adjournment had been granted for the purposes
mentioned in the Rule 3; (iii) party who had taken the time defaulted in doing the act, for
which he took the time from the Court; (iv) party must be present/deemed to be present
before the Court; (v) there must be some material on record for decision of the case on
merits; and (vi) Cou rt must decide the suit forthwith within a reasonable time.
(e) Civil Procedure Code (V of 1908) ---
----O.XVII, Rr.2 & 3--- Dismissal of suit ---Slipshod order bereft of just/legal reasoning
passed under R.3 of O.XVII, Civil Procedure Code, dismissing the su it without considering
the material on record, would be beyond the scope of powers specified under the said Rule.
Muhammad Ibrahim Lehri for Petitioner.
Muhammad Usman Yousufzai for Respondents Nos.1 to 2.
Allauddin Kakar, Assistant Advocate General (AAG) for Respondent No.3.
Date of hearing: 7th October, 2021.
JUDGMENT
ROZI KHAN BARRECH, J. ----The petitioner/plaintiff assailed order and decree
dated 25.03.2021 (hereinafter "the impugned Order") passed by learned Qazi Dasht,
Mastung, (hereinafter "the trial court") whereby the suit of the petitioner/plaintiff was dismissed in non -prosecution and non- interest and the order dated 28.04.2021 (hereinafter
"the impugned Order") passed by learned Majlis -e-Shoora, Mastung, (hereinafter "the
appellat e court"), whereby the appeal filed by the petitioner/plaintiff was also dismissed.
2. Concise facts of the case are that the petitioner/plaintiff filed a suit for Right of Pre -
emption, Declaration, Temporary and Permanent Injunction against the respondent s/defendants before the trial court.
3. The respondents/defendants resisted the suit, while submitting their written
statements; they controverted the assertions contained in the plaint.
4. The trial court framed issues, the petitioner/plaintiff filed a list of witnesses,
whereafter failed to produce evidence as such on 25.03.2021, the learned trial court
dismissed the suit in non- prosecution and non- interest under Order XVII Rule 3 of the Code
of Civil Procedure (V 1908) (hereinafter referred to as ("C.P.C .").
5. Being aggrieved from the order and decree dated 25.03.2021, the petitioner filed an
appeal before the learned appellate court, and the same was dismissed on 28.04.2021, whereafter the instant petition was filed.
6. Mr. Muhammad Ibrahim Lehri, learned counsel for the petitioner, has argued that the
learned trial court closed the side of the petitioner to produce evidence under Order XVII, Rule 3, C.P.C.; that provisions of Order XVII, Rule 3, C.P.C. are discretionary and not mandatory; that prior to the closing of the petitioner's side, no opportunity to produce evidence was granted; that the impugned order and decree passed by both the courts below are perverse and not in accordance with settled norms and principles of evidence; hence, liable to be s et aside. Learned counsel argued that the technicalities must not come in the
way to substantial justice; that exercise of discretion should have been in favour of the petitioner; that the case is fit to be remanded back to learned trial court for resolving the issues after giving proper chance of adducing evidence to the petitioner; that learned trial court has not provided opportunity to the petitioner for production of witnesses and dismissed the Suit and appeal of the petitioner erroneously; that non pr oduction of witnesses
by the petitioner was not intentional because the witnesses were out of town; that the material available before the learned trial court is sufficient to establish pure/solid case of evidence which could have been proceeded with in or der to determine the facts in issue by
giving opportunity to both the parties to substantiate their claim; that learned trial court failed to reach proper conclusion in the light of material and arguments as referred to in the
impugned orders and decree; t hat the impugned orders and decree are illegal, unjust,
improper and opposed to facts and record and particularly against the settled principles regarding assessment of cause of action; that the impugned orders are without reasoning, hence not sustainable under the law and liable to be set -aside.
7. Mr. Muhammad Usman Yousufzai, learned counsel for respondents Nos.1 and 2, has
supported the impugned orders and decree passed by both the courts below and prayed for dismissal of the instant revision petition.
8. I have heard the learned counsel of the parties and perused the material available on
record.
9. The suit initiated by the petitioner was dismissed by the learned trial court vide order
and decree dated 25.03.2021 under Order XVII, Rule 3, C.P.C. for non -production of
evidence despite availing numerous opportunities; as is apparent from the order and decree dated 25.03.2021.
10. During the course of arguments, it has been noticed by me that the petitioner,
although failed to produce the evidence, yet to my dismay, the learned trial court ought to have offered him an opportunity to testify before the court while closing his right to adduce
remaining evidence which legal obligation had not been fulfilled by not affording such
opportunity before closing his evidence. It is the unbeatable right of a party present before the court to make a statement to prove the contents of his case. It is manifestly clear from the record that he has been deprived of his fundamental right.
11. It appears that the trial court has been oblivious to the duty enjoined upon him by
failing to admit the right of the petitioner to appear in the witness box and has thereby erred in law by omitting to exercise its jurisdiction; which amounts to the blatantly frustrating legal right of the petitioner.
12. Keeping in view the circumstances mentioned above, I have considered the legal
aspect of the impugned orders and decree in order to ascertain that whether the trial court should have to proceed under Order XVII, Rule 2, Rule 3, C.P.C., against the petitioner as at the previous date of hearing either the matter was adjourned at the instance of the court or the adjournment for the date was sought at the behest of the petitioner. Before discussing all these points, I would like to reproduce t he relevant provisions of Order XVII, Rules 2 and 3,
C.P.C.
Order XVII Rule 2.
"Procedure if parties fail to appear on day fixed.--- Where, on any day to which the
hearing of the suit is adjourned, the parties or any of them fail to appear the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit".
Order XVII Rule 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 ".
13. It appears that there is a distinction between Rules 2 and 3 of Order XVII, C.P.C. In
Rule 2, where the suit is adjourned, the parties or any of them fails to appear; the court may proceed to dispose of the suit in one of the modes prescribed under Order IX, C.P.C. or make such order as think it fit. While under Rule 3 of Order XVII, C.P.C. when time is granted, any party failed to produce his evidence or cause of his attendance or p erform any other act
which is necessary for further progress of the suit, on default, the court would proceed to decide the suit forthwith.
14. The procedure laid down under Rule 3 there must be an element. The adjournment
must have been on the instance of a party; secondly, there must be material on record for the
court to peruse and decide the case. For proceeding under Rule 3 of Order XVII, C.P.C. there shall be material to decide the suit forthwith. The trial court proceeded to decide the suit forthwith without any material before it and has acted in its jurisdiction illegally and with
material irregularity. Reference is made to the case of Tanzeem Corporation Gupis/Yasin v.
Momin Shah (2016 CLC 1490), in which it was held:
"13. The learned trial Court although has acted under Rule 3 of Order XVII, C.P.C.
while passing the impugned order but practically he has adopted the procedure as provided under Rule 8 of Order IX, C.P.C. The provisions of Rule 8 of Order IX, C.P.C. are attracted when the plaintiff r emains absent when the suit was called for
hearing, the Court may make an order that the suit be dismissed. In the present matter the learned trial Court has acted under the procedure provided in Rule 3 of Order XVII, C.P.C. but through the impugned order has dismissed the suit practically
adopting the procedure provided under Rule 8, Order IX, C.P.C. whereas the provision of Rule 3 of Order XVII, C.P.C. being permissive and discretionary in nature is very much different from the provisions of rule -8 of Ord er IX, C.P.C. In
Rule 3 of Order XVII, C.P.C. the words " proceed to decide forthwith" do not mean to decide the Suit forthwith or "dismiss the suit forthwith". Court may proceed with the Suit notwithstanding either party failed to produce evidence, meanin g thereby that in
case of default to do a specific act by any party to the suit, next step required to be taken in the suit should be taken. The word "forthwith" means without any further adjournment yet it cannot be equated with the words "at once" pronou nce a judgment
forthwith. The next object of the provision of rule -3 is that after striking off the
defence would not vest the Court with an authority to grant decree ignoring the material on file which means that when the Court suggests that penalizing pr ovisions
became mandatory to be applied it should at least record the statement of the party concern and then adjourn the case for evidence of the opposite party or at least adjourn the case for hearing arguments of the parties enabling itself to deliver a full
judgment returning finding on each issue so as to fulfill the actual object and mandate
of Rule 3, of Order XVII, C.P.C."
15. It is settled law that evidence of a party cannot be closed under Order XVII, Rule 3,
C.P.C. for non -production of evidence where the case on the previous date was not adjourned
at the request of such party. For the application of Rule 3, C.P.C. the following conditions must co -exist: -
i. Adjournment must have been granted to the party at his request;
ii. It must have been gran ted to it for the purposes mentioned in the rule 3.
iii. The party who has taken the time defaulted in doing the act - for which he took the
time from the court;
iv. The party must be present or deemed to be present before the court;
v. That there must be some material on record for decision of the case on merits and;
vi. That the court must decide the suit forthwith that is within a reasonable time.
16. In the instant matter, I did not find an indication in the impugned order and decree of
the learned trial court that the matter was adjourned on the previous date of hearing on the
request of the petitioner/plaintiff.
17. The adjournment on the last date of hearing appeared to have been made in routine,
even otherwise if the learned trial court h as made an observation that it would be the last
chance for recording evidence of the plaintiff, Rule 3 of Order XVII, C.P.C. was inapplicable
as the adjournment could not be held to have been given to the party at his instance.
18. It is stated earlier th at the court has no jurisdiction to decide the suit under Order
XVII, Rule 3, C.P.C.; the trial court should have proceeded with the suit forthwith under Rule 1(3), C.P.C and not proceeded to decide the suit forthwith under Rule 3, C.P.C. A slipshod order bereft of just and legal reasoning passed under Rule 3, C.P.C., dismissing suit without considering the material on record, would be beyond the scope of powers specified under Rule 3, C.P.C. Consequently, when the suit is at a preliminary stage, and there is not
enough material on the record for a decision forthwith, the court cannot dismiss the suit under such Rule 3, C.P.C. It is also pertinent that the valuable right of the petitioner/plaintiff is involved in the suit, which cannot be allowed to be defea ted in law on a mere technical
point as courts are to avoid technicalities in deciding disputes between the parties and adhere to the merits of the case.
19. In view of the above, the instant revision petition is accepted. The impugned orders
and decree passed by the learned trial as well as appellate courts are set aside, as a result whereof; the suit shall be re -adjudicated by the learned trial court by granting two
opportunities to the petitioner/plaintiff to produce his complete evidence subject to paym ent
of the cost of Rs.30,000/ - (Rupees Thirty Thousand Only) to be deposited in the account of
respondents/defendants within one month from the date of commencement of the proceedings by the trial court and if he failed to produce the evidence on the date to be fixed
by the learned trial court his right to produce evidence would be deemed to have been closed. The parties are directed to appear before the court of Qazi Dasht, Mastung, on 22.11.2021,
who shall proceed with the matter in accordance with the la w.
ZH/192/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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