Maulvi ABDUL AZIZ KHAN vs Mst. SHAH JAHAN BEGUM AND 2 OTHERS

1. WAHIDUDDIN AHMAD, J.--This appeal by special leave is directed against the order of the High Court of West Pakistan, Lahore, in Civil Revision No, 438 of 1970, dated the 28th May 197J. By this order, a learned Single Judge of the High Court dismissed the revision petition filed by the appellant in limine. It has arisen in the following circumstances:-- The dispute between the parties is in respect of the land allotted to respondent No, 1 against the Produce Index Units inherited by her from her brother Nawab Muhammad Shamshad Ali Khan. The appellant's case is that respondent No, 1 entered into an agreement of sale in respect of this property and appointed and constituted respondent No, 2 as her general Attorney to complete the sale. It is alleged that on the basis of these documents, mutation was entered and sanction was accorded in favour of the appellant at the instance of respondent No, 1 through her general Attorney, respondent No,

2. Respondent No, 1 challenged this agreement and filed a suit for declaration that the alleged agreement, the general power of attorney and mutation of sale were illegal and void as they were obtained by fraud and misrepresentation. She also prayed that the same may be cancelled and a permanent injunction may be issued against the appellant and respondent No, 2.

2. The suit was resisted by the appellant. On the 12th April 1967, issues were framed. The evidence of respondent No, 1 was finished by the 3rd July 1969. The appellant was ordered to produce his evidence on the 3rd November 1967, but he failed to summon any evidence for that date and the case was adjourned to 3rd December 1969. On the 3rd December 1969, the Court was on leave and the case was adjourned to 5th January 1970. On this date the Court fixed the case for 30th of March 1970, for evidence of the appellant. No summons were issued to the witnesses for this date and the appellant failed to produce his evidence on that date. He was burdened with costs of Rs, 50 and the case was again adjourned to 30th April 1970. The appellant was directed to produce evidence on that date on his on responsibility. For this date only one witness was served. He was examined and the Court refused to adjourn the case for the summoning of the other witnesses. The case of the appellant was closed under Order XVII, rule 3, C. P. C. The trial Court, after recording the evidence of respondent No, 3, adjourned the case for argument and production of certified copies of affidavits by the counsel for respondent No, 2 to 16th January 1970.

3. The appellant challenged this order in revision before the High Court, which was dismissed by a learned Single Judge in limine on the 28th May 1970. The appellant challenged this order in Civil Petition for Special Leave to Appeal No, 143 of 1970 and sought permission for leave to appeal on two grounds:--

(1) that the appellant was not negligent in the conduct of his case, and

(ii) that as the trial Court failed to decide the suit forthwith, the order, under Order XVII, rule 3, was illegal.

4. This Court, by order dated the 30th June 1970, came to the conclusion that the appellant has been negligent in conducting the A case before the trial Court and refused to grant leave on that ground. Leave was, however, granted to consider the question as to whether the learned trial Court's order under Order XVII, rule 3, was illegal because it did not proceed to decide the suit forthwith.

5. The short question, therefore, for consideration in this case is whether the order of the trial Court is illegal because it did not proceed to decide the suit forthwith after closing the case of the appellant under Order XVII, rule 3, C. P. C.

6. Mr. Aftab Hussain, learned counsel for the appellant, has relied on two decisions of the West Pakistan High L ourt in the cases of Bahadar Shah and others v. Sharaf Major and others and Industrial Sales and Services, Karachi and another v. Archifar Opel Laboratories Ltd., Karachi He has also referred to the case of Mst. Jaggo v. Kanhaiya Lal . It was held in the first two mentioned cases that by a decision forthwith it is meant that the Court must decide the case on the same day and cannot adjourn the hearing to some other date and then purport to decide it under this rule.

7. The learned counsel contended that in the present case, the learned trial Court, after closing the case of the appellant under Order XVII, rule 3, C. P. C., recorded the evidence of rerspondent No, 3 and adjourned the case for argument and production of certified copies of affidavit by the counsel for respondent No, 2, to 16th June 1970, and, therefore, the order in question does not fall within the provisions of Order XVII, rule 3, C. P. C. According to the learned counsel, if the case was adjourned to another date, the trial Court should have granted the appellant further time to adduce his evidence. He further contended that the provisions of Order XVII, rule 3, C. P. C., are penal and they must be construed strictly, and in support of it he referred the case of Kartar Devi v. Surasti and another . He also contended that Order XVII, rule 3, C. P. C. is enabling rule and not a mandatory one. If the circumstances are such that the Court cannot decide the suit forthwith on the material before it, it should not avail itself of the provisions of that rule. In support of his contention, he relied on the case of Sher Ali v. Mangu and others .

8. On the other hand, Ch. Mohammad Iqbal, learned counsel for the respondent No, 1, has contended that the words "proceed to decide the suit forthwith" does not mean to decide the suit on the same day. According to him, forthwith means within a reasonable time.

9. After considering the contention of the learned counsel for the parties, we are satisfied that the word "forthwith" in Order XVII, rule 3, C. P. C., means within a reasonable time under the circumstances of the case. In order to appreciate the arguments of the learned counsel, it is necessary to reproduce Order XVII, rule 3, C. P. C., which is as under:-- "Where any party to a suit to whom time has been granted fails to produce his evidence, or to1 2 3 4 5 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."

10. It will be seen that this rule applies to a case where time has been granted to a party at his instance, to produce evidence, or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted. In the present case, the appellant was granted time on several occasions to produce his evidence and on the last occasion he was granted time to produce evidence on his own responsibility. Thus Order XVII, rule 3, C. P. C., was attracted to the facts of the present case. The contention of the learned counsel for the appellant that 'proceed to decide the suit forthwith" mean to decide the suit on the same day does not appear to be correct. In ordinary dictionary meaning "forthwith" means within a reasonable time. In Osborn's Dictionary, "forth-with" means as soon as reasonably can be.In Webster's Dictionary, "forthwith.' means, without delay; hence within a reasonable time. In Black's Law Dictionary, "forthwith" means as under :-- Immediately; without delay, hence within a reasonable time under the circumstances of the case; promptly and with reasonable despatch; within such time as to permit that which is to be done, to be done lawfully and according to the practical and ordinary course of things to be performed or accomplished. According to Wharton Law Lexicon at p. 131, "forthwith" means as under :- "When a statute or rule of Court requires an act to be done forthwith, it means that the act is to be done within a reasonable time having regard to the object of the provision and the circumstances of the case."

11. Thus it is quite clear that the word "forthwith" does not mean on the same day. The reasonable meaning of this word in the context of Order XVII, rule 3, C. P. C., is that the Court should proceed to decide the suit within a reasonable time under the circumstances of the case. In our opinion, the view expressed in above decision that the suit should be decided on the same day is not in accordance with law.

12. In view of the above conclusion, we are satisfied that the trial Court was perfectly justified in adjourning the case for argument so as to enable him to proceed with the suit forthwith. We, therefore, find no fault with the order of the trial Court and are satisfied that it is a perfectly legal order. There is, therefore, no force in this appeal which is dismissed with costs. PLD 1967 Lab. 154 PLD 1969 Kar. 418 AIR 1957 All. 344 (1908) 9 P R 68 AIR 1919 Lah. 344