JINDWADD Versus ABDUL HAMID

1. MUHAMMAD AFZAL ZULLAH, CJ .‑‑‑This appeal through leave of the Court is directed; against the dismissal by the High Court, of appellants' Civil Revision. It had arisen out of an order for closing the appellant/plaintiffs' evidence by the trial Court under Order XVIT, Rule 3, C.P.C. The appellants having failed in appeal and revision were granted leave to appeal as follows:‑‑

2. "Learned counsel has taken us through the proceedings before the learned trial Judge. After hearing him at some length we consider it a fit case to examine whether in the facts and circumstances of the case the evidence of the petitioners could be closed under Order XVII, Rule 3, C.P.C. A recent judgment of this Court in Haji Muhammad Ramzan Saifi v. Mian Abdul Majid and others (P L D 1986 Supreme Court 129) would also require examination so as to see whether it goes in favour of the petitioners. More over, the question of res judicata also is involved. Accordingly, we convert this petition into appeal."

3. With assistance of both the learned counsel we have gone through the record. The relevant part of the Order‑sheet reads as follows:‑‑

4. From the above reproduction it is clear that on 16‑5‑1987 the evidence of the appellant was present but it could not be recorded for the reason that no time was left with the Court to record the same. Accordingly, instead of binding down the witnesses and recording the evidence on the next date the learned Judge gave a longish adjournment of 5 months. On the next date when the case was taken up it was before another Court as a result of transfer thereof. There is nothing in the order to show that plaintiff had not brought his evidence with him on that day. The only reason given for adjournment is that the case having been received on transfer it was (perhaps) registered on that date and was adjourned for appellants' evidence, to 20‑11‑1987. On this day i.e. 23‑11‑1987 the learned trial R Judge assuming that the said date was fixed and the case was adjourned on the request and asking of the plaintiffs for the production of their evidence and they having failed to do so, Order XVII, Rule 3, C.P.C. was attracted. Obviously this was a mistake. The case on 20th October, 1987 was not adjourned on the request of the plaintiffs. It was a Court act of noticing transfer of the case to it and then in routine fixing a date for the evidence of the plaintiffs to start. Hence obviously Order XVII, Rule 3, C.P.C. was not applicable. This aspect of the case was not at all noticed by the High Court. On the other hand it misread the record and observed as follows:‑‑

5. "I have considered the submissions made by the learned counsel for the petitioners with care. I find that on one date i.e. 16‑5‑1987 the hearing of the case was adjourned at the instance of the plaintiffs/petitioners. The words used in the order that:‑‑

6. "AS PRAYED LAST OPPORTUNITY IS GRANTED" are of great significance and indicate that the hearing of the case was adjourned on the request of the petitioners/plaintiffs. The case was adjourned for more than year from time to time but the petitioners failed to produce evidence before the Court and as such their evidence was closed. The judgment of the learned Trial Court which was confirmed by the learned District Judge does not suffer from any illegality, material irregularity or jurisdictional defect."

7. Accordingly, the revision petition was dismissed. It is remarked with regret that the learned Judge did not read the record with care. It is an obvious case of misreading as dismissed above. It was not a case of application of Order WIT, Rule 3, C.P.C. Otherwise too it is not correct that the appellants had obtained more adjournments as compared to the large number of adjournments granted for the sake of the respondents' side. The suit was instituted in 1985 and it was adjourned for more than a dozen times for the sake of the defendants/respondents. However, be that as it may the fact remains that there was absolutely no justification for application of Order XVII, Rule 3, C.P.C. The impugned judgment, accordingly, is liable to be set aside on this ground alone.

8. Learned counsel for the respondents, however, contended that he has very good case on the other points noted in the leave grant order. One of them being of res judicata. This question having been raised from the respondents' side before the trial Court is subject‑matter of further proceedings during the trial. One order has already been passed by the learned Judge in that behalf. His approach was that it could not be decided as a preliminary issue and that the same needed recording of evidence. That order was passed in the beginning of 1986 and the respondents' side had not challenged that order before us. Moreover progress of the case has been thwarted by the learned trial Judge passing a wrong order at a crucial stage of the suit. It has further prolonged the litigation unnecessarily. And unfortunately due to said wrong order passed, another 3 years during which the respondents' side insisted that the said wrong order must be upheld. Learned counsel for the respondents adopted the same attitude before this Court also. Accordingly, while allowing this appeal with costs of the appellant awarded against the respondents (fixed lump sum of Rs.5,000) was set aside the impugned orders, judgments and decrees and remand the case to the learned trial Judge for proceeding afresh from the stage the wrong order dated 23‑11‑1987 under Order XVII, Rule 3, C.P.C. was passed. It is further directed that the case having suffered unjustified and unnecessary delay the trial Court shall try to conclude it, if possible, within nine months of the receipt of the records and the orders; beyond which it shall submit fortnightly report to the High Court.

9. M.B.A./J‑82/5 ?????????????????????????????????????????????????????????????????????? Order accordingly.