Malik MUHAMMAD FEROZ Versus Ch. BASHIR AHMAD
The brief facts in the instant Civil Revision are that the petitioner's evidence was closed under Order XVII, rule 3, C.P.C. by the learned trial Court and the suit filed by the petitioner was dismissed. On appeal the finding of the learned trial Court was confirmed.
2. The arguments advanced by the learned counsel for the petitioner is that the judgment and decree of both the learned Courts below are based on erroneous assumption of facts and law arid against the well settled provision of the Civil Procedure Code as the Petitioner was not afforded sufficient time to produce his evidence by the learned trial Court. The bare reading of the record shows that only three dates were given to the petitioner for producing his evidence and it was technically decided. As the petitioner was not guilty of contumacy and obduracy, therefore, the provisions of, Order XVII, Rule 3, C.P.C. were not attracted to the petitioner's case. Reliance is placed on Syed Arshad Naeem and 5 others v. Atta Rabbani and 2 others 1999 MLD 2267.
3. The learned counsel for the respondent argued that he filed an application under Order VII, Rule 11, C.P.C. for rejection of the plaint but the learned trial Court did not decide the application rather formulated the issues and fixed the case for evidence and on three occasions the petitioner had failed to produce his evidence, therefore, his right of evidence was rightly closed. Reliance is placed on Mian Gul Shehzad Atrtan Room v. Kameen Mian and others PLD 2003 Pesh. 60.
4. I have heard the learned counsel for the parties and have perused the record.
5. On 27-11-2002 the learned trial Court observed that the defendant's right of filing the written statement was struck off. A Misc. Application was filed under Order VII, rule 11, C.P.C. by the Defendant alleging that the Plaintiffs suit is barred by limitation. In the light of the plaint and this application filed under Order VII, rule, 11, C:P.C. the learned trial Court framed the issues and put up the case on 24-2-2003 for recording the evidence of the Plaintiff. On that day the evidence of the Plaintiff was not available. It was adjourned to 22-4-2003 On 22-4-2003 again adjourned to 18-6-2003 and on that day the learned trial Court closed the evidence of the Plaintiff and vide judgment and decree, dated 18-6-2003 dismissed the suit. The provisions of Order XVII, rule 3, C.P.C. no doubt are punitive in nature but it does not mean that the Court can use punitive action without even giving a final opportunity of evidence to the parties. The provisions of this rule are permissive and discretionary and also not mandatory in nature. The Court can only close: the evidence if the parties' conduct is contumacious and fails to produce' the witnesses. Where a party has failed to produce evidence the Court may close its evidence and proceed to record the evidence of the other party and when evidence of the other party is recorded the other side must be given a reasonable opportunity to impeach the testimony of the witnesses. Reliance is placed on Muhammad Akhlas v. Syed Mehdi Raza 1988 MLD 1545. Moreover both the orders, dated 24-2-2003 and 22-4-2003 do not disclose that on whose instance the case was adjourned for evidence.
6. The other material fact is that when an application is given under: Order VII, Rule 11, C.P.C. and the reply has been filed the Court is bound to decide the same firstly and then proceed on with the case or to frame issues and treat the issues of the `suit being incompetent' as preliminary issues and record the evidence and then to decide the same. In the present case the issues were framed and from the perusal of the record it shows that the right of filing the written statement is also struck off by the learned trial Court. While administering the justice within the all four corners of law the Court should not be harsh to the parties to the suit to punish them where and whenever an occasion arises rather it should sit with an open and judicial mind and act in all fairness within C the norms of justice. Therefore, a material irregularity and illegality exists in attracting the provisions of Order XVII, rule 3, C.P.C. in the present case where the Court has rushed to a punitive action rather giving sufficient time to the parties to produce their evidence. The facts and circumstances of this case does not apply to the facts given in Mian Gul Shehzad Aman Room v. Kameen Mian and others PLD 2003 Pesh.
60. In that case 17 adjournments were given for production of the evidence. Here only three opportunities were given within the time of formulation of issues and at no stage the Plaintiff was put to guard to produce the evidence. Secondly reliance is placed on Mst. Arifa Amjad and 2 others v. Abbas Tayyab Dar and another 1990 CLC 1743 (Lahore) have been settled for the trial Court to observe before attracting the provisions of Order XVII, rule 3, C.P.C. that (i) the time must be granted to the parties on at their instance, (ii) time must have been granted to the party to do one or other of the three things mentioned in the rule to produce evidence or to cause attendance of witnesses or to perform any other act necessary for the progress of the suit, (iii) default must have been committed by the party in doing the act for which the time and adjournment had been granted to it, and (iv) the Court must decide the suit forthwith which means a decision within a reasonable time under the circumstances.
7. In view of what has been stated above, the Civil Revision is accepted and the judgments and decrees of the learned trial Court as well as the learned Appellate Court, dated 18-6-2003 and 21-11-2003 E respectively are hereby set aside.
8. The parties are directed to appear before the learned trial Court; on 24-5-2004.
M.H./M-346/L Case remanded.