2017 M L D 1894
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
NASEEBULLAH KHAN---Appellant
Versus
ABDUS SAMEE BABAR---Respondent
Regular First Appeal No.123 of 2009, decided on 22nd June, 2017.
(a) Civil Procedure Code (V of 1908) ---
----S. 2(9), O. XVII, Rr. 1, 2 & 3 & O. XX, R. 4--- Decision of court ---Term 'decide the suit
forthwith'---Scope--- Term 'decide the suit forthwith' occurring in O. XXVII, R.3, C.P.C. refers to
decision (if there is evidence on record) within meaning of O.XX, R. 4(2), C.P.C. and S. 2(2) &
(9), C.P.C.---Decision referred in such provision means judicial determination in accordance
with evidence before Court ---Provision of O. XVII, R. 3, C.P.C. contemplates that Court has to
decide suit which means material and evidence brought on record is to be considered in order to decide suit, if there is no evidence then Court may proceed the same either under R. 2 or R. 1 of O. XVII, C.P.C.
Amanullah Khan and 3 others v. Mst. Akhtar Begum 1993 SCMR 504 rel.
(b) Civ il Procedure Code (V of 1908) ---
----O. XVII, R. 3---Suit for damages ---Trial Court closed the right of defendant for producing
evidence and suit was decreed in favour of plaintiff ---Validity ---Defendant filed list of witnesses
on 06- 08-2009, matter was fi xed after two days on 08- 08-2009 and then on 15- 08-2009, his right
of adducing evidence was closed and matter was fixed for 18 -08-2009 and 03- 09-2009; while
closing statement of defendant suit was decreed under O. XVII, R. 3, C.P.C.---Proper opportunity ei ther producing or recording his statement was not afforded to defendant
particularly in a case of damages of Rs. 5 billion and suit was decreed without discussing any evidence or giving any reason for the same---High Court set aside judgment and decree pas sed
by Trial Court and remanded case to Trial Court for decision afresh.
Gee Corporation of Pakistan Ltd. and 2 others v. Habib Bank Ltd. PLD 1984 Lah. 421;
Provincial Government through Collector, Kobar v. Shabbir Hussain PLD 2005 SC 337 and Kamran Co. and others v. Messrs Modern Motors and another PLD 1990 SC 713 ref.
Mujeeb Ahmed Hashmi for Appellant.
Muhammad Akram Shah for Respondent.
Date of hearing: 7th June, 2017.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The respondent (plaintiff) filed a suit for damages
in the sum of Rs.5 Billion against the appellant (defendant) with the averments that while posted
as Collector Customs as well as Sales Tax and Federal Excise Balochistan, the plaintiff performed his duty strictly in accordance with law and rendered his services with the best of his
ability and capability in view of his unblemished and spotless service career. It was allegation of the plaintiff that the appellant (defendant) while posing himself as Vice -Chairman of Pakistan
Afghanistan Business Counc il at the behest of some tax evaders and smugglers in the month of
June 2008 started leveling false allegations against him by organizing a press conference; news thereof were published in the prominent newspapers i.e. Balochistan Times, Mashriq Quetta, Jang Quetta, Intekhab Quetta, Express Quetta and Awam Quetta dated 11th June, 2008, wherein
the appellant (defendant) had leveled false allegations against the plaintiff (respondent) and such press conferences were also displayed and footage whereof were played in different news channels of Electronic Media. It was further averred that Chamber of Commerce and Industry, Quetta has denied the membership of the appellant with further verification that even he was not a businessman. The Chamber of Commerce and Industry, Chaman had also denied the allegations leveled by the appellant against the respondent. The Federation of Pakistan, Chamber of Commerce and Industries has also confirmed through their correspondence that the appellant was neither a registered member of Federation nor a businessman.
2. The appellant (defendant) contested the suit by way of filing written statement and raised
legal objections as well as denied the assertions of the respondent (plaintiff) on merits and
further submitted that there was absolutely neither a proof of slander and libel on the part of the
appellant nor is there any act of defamatory on his part.
3. Out of pleadings of the parties, following issues were framed:
1. Whether the suit filed by the plaintiff is not maintainable in view of preliminary
legal objections 'A ' and 'B' raised by the defendant in written statement ?
2. Whether the defendant has damaged the reputation of the plaintiff and caused him
mental torture and agony by making false propaganda and scandalous statem ents against
him in different newspapers and news channels ?
3. Relief ?
4. The respondent besides producing 17 witnesses also recorded his statement on oath.
Whereas the appellant filed his list of witnesses on 6th August 2009, however on 8th August
2009 and 11th August 2009, he could not produce his witnesses, as such the right of the
appellant for adducing evidence was closed and the matter was fixed for statement of the appellant on 18th August 2009. However, the Additional District Judge -IV, Quetta (he reinafter
the "trial Court") while closing the statement of the appellant has also decreed the suit vide order and decree dated 3rd September 2009 (hereinafter the "impugned order and decree"). The relevant whereof is reproduced herein below: --
"On next date of hearing i.e. 27.08.2009 the defendant again failed to appear and comply
with the orders/ directions of the court, but again he was afforded with an opportunity to
appear and to record his statement thus the case was fixed for today i.e. 3.9.2009 for recording statement of the defendant, but neither he appeared nor recorded his statement, thus it appears that the defendant is not taking interest and playing tactics, therefore in the
light of directives laid down in National Judicial Policy, no a lternative is left with the
court, but to decree the suit of the plaintiff under the provisions of Order XVII Rule 2,
C.P.C. in his favour. Therefore the suit of plaintiff is decreed in his favour and against the defendant as prayed in his direction to the defendant to pay Rs. 5 Billion to the plaintiff
as damages for leveling false, unfounded, frivolous, vicious and malicious allegations against the plaintiff with cost of the suit. Decree sheet be drawn. File after completion be consigned to record."
5. Learned counsel for the appellant contended that the appellant was running two
companies with the name and style of Mustafa Khan and Sons and he was Managing Director of said Firms and Companies and is also a taxpayer from the date since he has started his business; that no opportunity of hearing was afforded to the appellant to produce his evidence and record his statement, as the trial Court was reluctant to decide the case within a few days without taking
any evidence, which is also evident from the record, as the list of witnesses was filed on 6th
August 2009; that the trial Court adjourned the matter to 8th August 2009 for evidence of the appellant and then the matter was fixed for 11th August 2009 and on 15th August 2009, the evidence of the appellant wa s closed, which aspect of the matter clearly shows that proper
opportunity had not been granted; that the plaintiff had produced 17 witnesses, but instead of discussing the issues on the basis of evidence merely passed a decree of Rs. 5 Billion against the
appellant under Order XVII, Rule 2, C.P.C. without any cogent reason; that Order XVII, Rule 2, C.P.C. was not attracted, as the matter was adjourned due to nonappearance of the witnesses
instead of parties; that the impugned order is based on presumptions and surmises, which under
the law cannot be sustained.
Learned counsel for the respondent in rebuttal contended that ample opportunities were
afforded to the appellant for producing evidence, which includes imposing of cost of Rs.500/ -,
but despite avail ing opportunity, the appellant had failed to comply the orders of the Court, for
which he had sought adjournment; that after closing the evidence, the matter was fixed by the trial Court for statement of the appellant and in this respect, opportunity was a fforded to the
appellant from 18th August 2009 to 3rd September 2009, therefore, the trial Court had no option but to have decreed the suit of the respondent; that the Order XVII, Rule 3, C.P.C. contemplates that "where a party fails to produce evidence or cause attendance of his witness or to perform any
other act necessary to further progress of the suit the Court may, notwithstanding such default, proceed to decide the suit forthwith".
6. We have heard learned counsel for the parties and perused the reco rd. The perusal of the
order and decree of the trial Court clearly reveals that the trial Court on failure of the appellant for recording statement, straightaway decreed the suit without discussing the issues on the basis of evidence on record. It is impor tant to mention here that the trial Court has passed the decree
within the provisions of Order XVII, Rule 3, C.P.C. as revealed from the order sheets of the trial Court due to the reason that the appellant (defendant) had failed to produce evidence or record
his statement. The record of the case further reveals that after framing of issues, the
respondent/plaintiff produced 17 witnesses, but the trial Court neither discussed the issues nor decided the matter on the basis of evidence on record and simply dec reed the suit in favour of the
respondent as prayed for with the direction to the appellant to pay Rs.5 Billion as damages for leveling unfounded, frivolous, fictitious and malicious allegations against him with cost of the
suit. Though in the order sheet, the suit was decreed under Order XVII Rule 3, C.P.C. but in the
impugned order, the decree has been passed under the provisions of Order XVII Rule 2, C.P.C.
There is distinction between Rule 2 and Rule 3 of Order XVII, C.P.C. The distinction between Rule 2 and Rule 3 of Order XVII, C.P.C. is that while Rule 2 applies to hearing, adjourned at the
stance of the Court. Rule 3 applies to hearing adjourned at the stance of a party, to whom time was allowed to do some act to further progress of the suit including producing evidence or recording statement, but who is defaulted. There is yet another distinction between rules, where there are no material on record. The proper procedure to be followed would be as laid down in Rule 2, but if there are material on reco rd, the Court ought to proceed under Rule 3 to apply the
procedure, therefore, laid down in Rule 3, C.P.C. Whereas, the impugned order reveals that the trial Court had proceeded the matter and decreed the suit on 3rd September, 2009 under Order XVII Rule 3 , C.P.C. The perusal of the impugned order of the trial Court reveals that without
deciding issues or discussing evidence available on record, the order/decree has been passed. The terms "judgment" and "order" in its wider terms may be said to include the decision given by the Court on question or issues between the parties to a proceeding before the Court. A decision as envisaged by Rule 3 Order XVII, C.P.C. must be a decision on merit i.e. on consideration of such material as may and necessary are availab le and it could not be a summary decision, the
Court pass a judgment/decree on each and every issue in the light of the evidence brought on record, therefore, where the decision was not on merit of the case, it would not sustain, aftermath of provision of Rule 3 of Order XVII, C.P.C. is that in the event of default, the Court may
proceed with the suit forthwith, which means that on the basis of such material as may be available before the Court. Sub- Rule (2) of Rule 4 of Order XX, C.P.C. describes that the
judgment shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons of such decision. Whilst Rule 5 of Order XX, C.P.C. further describes that "in suit, in which issues have been framed, the Court sha ll state its findings or decision, with
the reasons, therefore, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for decision of the suit". Since the Court has failed to give its own decision and the reason for decision on the issues, the judgment so pronounced cannot be termed to be a judgment/decree as defined in sub- clause (9) of section 2 and sub- rule (2) of Rule 4 of Order XX
and Rule 5 of Order XX, C.P.C. Reference in this respect is to be made to the case of Gee Corporation of Pakistan Ltd. and 2 others v. Habib Bank Ltd. PLD 1984 Lahore 421.
7. In the instant case, the trial Court decided the matter within the provision of Order XVII
Rule 3, C.P.C., which reads as under: --
"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."
In view of the above provision, the trial Court in the instant case had refused the
adjournment and decided the suit forthwith. The term "dec ide forthwith" reference to decision (if
there is evidence on record) within the meaning of Sub- rule (2) of Rule 4 of Order XX, C.P.C.
and section 2 and subsection (9) of section 2 as well as Sub- rule (2) of Rule 4 of Order XX,
C.P.C. The decision referred in the aforesaid provision means judicial determination in
accordance with evidence before the Court. Order XVII, Rule 3, C.P.C. contemplates that the
Court has to decide the suit, which means the material and evidence brought on record is to be
considere d in order to decide the suit, if there is no evidence, then the Court may proceed the
same either under Rule 2 or Rule 1 of Order XVII, C.P.C. In the case of Amanullah Khan and 3
others v. Mst. Akhtar Begum, 1993 SCMR 504, the Hon'ble Supreme Court interpreted the terms "judgment/decision" within the view of Order XVII Rule 3, C.P.C. and observed as under: --
"On the legal plane it appears that Order XVII, Rule 3, C.P.C. contemplates that when any party fails to produce evidence, the Court may notwithstandi ng such default, proceed
to "decide" the suit forthwith. According to dictionary words "to decide" mean "settle (question, issue, dispute) by giving victory to one side; give judgment (between, for, in favour of against), bring come to resolution". "Decisi on" means "settlement, conclusion,
formal judgment, making up one's mind". Word "decision" came up for examination in the case of Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 and it was held that "decision" means judicial determination in accordance with evidence before the
Court. Coming back to Order XVII, Rule 3, C.P.C. the requirement of the law is that the court has to decide the suit which means that material and evidence brought on the record is to be considered in order to decide th e suit. In the instant case evidence of the plaintiff
was recorded and from issues in several burden was put on the plaintiffs. Side of the defendants was closed as they failed to bring their witnesses on the date of hearing. In the circumstances it was ma ndatory for the Court to have examined the evidence brought on
the record. It was not proper to have decreed the suit straightaway without examination of evidence brought on the record."
8. In the instant case, the trial Court while passing the impugned judgment and decree had
failed to give its decision and the reason for decision on the issues, the judgment so pronounced cannot be termed to be a judgment/decision within the meaning of Order XVII Rule 3, C.P.C. It is settled clause that if the facts set ou t in the plaint are treated to have been admitted, a judgment
an decree cannot be possibly passed without requiring the plaintiff to prove the fact pleaded in the plaint. It is only when the Court for recording reason and is verbally satisfied that there i s no
fact, which needs to be proved at the stance of the plaintiff in view of the deemed admission by the defendant, but if the plaint itself indicates that there are disputed questions of facts involved in the case and where the divergent pleadings of the parties issues were framed, then it would not
be safe for the Court to record the judgment/decree without directing the plaintiff to prove the fact so as to settle the factual controversy. These principles not only applied under Rule 3 of Order XVII, C.P. C. but same would be applicable when the Court has to record an ex -parte
judgment.
9. In the instant case, the trial Court has failed to record any reason as to whether the
assertion made by the plaintiff has been proved or otherwise. It is well acknowledged and legal factum that mere assertion of a party is no proof and hence, the burden lays on the plaintiff to prove that the allegations leveled by him, which has not been done even not a single evidence on record has been discussed, therefore, the trial C ourt, in our view, has adopted an approach not
permissible under the law by inferring that because there is no evidence on record or the same
could be held to have been proved, even otherwise, the trial Court while accepting the plea of the plaintiff/respo ndent ought to have recorded reasons, even if were based on evidence. It is also
settled proposition of law that even an ex -parte decree is required to be passed on proper
appreciation of evidence on record and without considering the evidence on record, s uch decree
could be construed nullity in the eyes of law. In the case of Provincial Government through
Collector, Kobar v. Shabbir Hussain PLD 2005 SC 337, the Hon'ble Supreme Court of Pakistan
in the similar circumstances held that "when the written state ment filed, the decree without
recording evidence cannot be passed", the relevant paragraph is reproduced herein below: --
"The Courts of law must always keep in mind that even where the law permitted passing of an ex parte decree, the learned Judicial Offi cers should not adopt the said course of
action with their eyes completely shut to the factual and legal aspect involved in the matter e.g. if a suit is filed seeking a decree to export Heroin from Pakistan and supposing none comes forward, for whatever re asons, to defend the said suit, then could
it be legal or permissible for a Court to pass a decree granting a relief which was absolutely illegal and unlawful?"
In Kamran Co. and others v. Messrs Modern Motors and another PLD 1990 SC 713, the
Hon'ble Supr eme Court observed as under: --
"The dictum laid down by this Court in Shamroz Khan's case applies to the facts of the present case also. Under Order XVII, rule 2 if any party fails 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 IX, rule 6(1)(a) would be applicable after the
summons have been duly served and the defendant does not appear but this provision would not be applicable in the present c ase as after the service of summons, the
appellants had appeared and filed the written statement. Thereafter, the issue had been settled. Therefore, it was obligatory on the Court to have decided the case on merits but as no evidence was produced by the respondent a decree could not be passed in the circumstances of the case. The judgments and decrees of the Courts below against the appellants are set aside."
10. In the instant case, the trial court without following the procedure and considering the
eviden ce on record passed the impugned judgment, which is contrary to the aforesaid provision
of law, therefore, same cannot be sustained. It is also observed that proper opportunity of producing evidence was also not provided to the appellant, as the appellant had filed list of witnesses on 6th August 2009 and the matter was fixed after two days on 8th August 2009 and then on 15th August 2009, his right of adducing evidence was closed and the matter was fixed for 18th August 2009 and on 3rd September 2009 while closing the statement of the appellant decreed the suit under Order XVII, Rule 3, C.P.C. therefore it appears that proper opportunity either producing evidence or recording his statement has not been afforded, particularly in a case of damages of Rs.5 Bill ion and thus, decreed the suit without discussing any evidence or giving
any reason for the same.
In view of the above, R.F.A. No. 123 of 2009 is partly allowed, the impugned order and
decree 3rd September 2009 passed by the learned Additional District Judge -IV, Quetta is set
aside and the matter is remanded to the trial Court to proceed with the matter after providing
opportunity of producing evidence to the appellant and decide the same in accordance with law possibly within a period of six months.
MH/11 0/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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