Messrs TRANSTECH LTD. Versus Messrs PAKISTAN TOBACCO COMPANY LTD.

CH. IJAZ AHMAD, J. ‑‑‑The brief facts out of which present appeal arises are that the appellant filed a suit for declaration, permanent injunction and damages of Rs.7,60.70,969 on 9‑9‑2000 in the Court of Civil Judge 1st Class, Lahore against the respondents. The respondents filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties, the learned trial Court framed the following issues:‑‑

Issues:

(1) Whether the suit is not maintainable? OPD

(2) Whether the plaintiff has no cause of action and locus standi? OPD

(3) Whether the termination letter dated 21‑3‑2000 issued by the defendant is in Breach of refining agreement‑taking place between the parties? OPP

(4) Whether the promissory note dated 25‑2‑2000 is a result of forgery and void and ineffective upon the plaintiff's right? OPP

(5) Whether the plaintiff is entitled to have damages as prayed for? OPP

(6) Relief.

2. The appellant was directed to produce evidence, but he failed to produce the same before the learned trial Court in spite of the fact that he was afforded various opportunities to produce his evidence; therefore, the learned trail Court closed the right of defence of the appellant for production of evidence under Order XVII, rule 3, C.P.C. on 9‑1‑2003 and also dismissed the suit of the appellant vide impugned judgment and decree dated 9‑1‑2003. The appellant being aggrieved filed an application under section 151 of C.P.C. before the learned trial Court at 1‑00 p.m. on the same date (9‑1‑2003) with enabling provisions of C.P.C. with prayer that order dated 9‑1‑2003 be set aside and the appellant/plaintiff be allowed to produce his evidence. The learned trial Court passed the order on the application of the appellant/plaintiff on the same date that "the application be put up alongwith main case on 15‑1‑2003". Subsequently, said application of the appellant/plaintiff was dismissed by the learned trial Court vide order dated 25‑2‑2003. The appellant/plaintiff has filed this appeal with the prayer that the impugned judgment and decree dated 9‑1‑2003 be set aside. The appellant filed this appeal before this Court on 17‑4‑2003.

3. The learned counsel of the appellant submits that the impugned judgment and decree was passed by the learned trial Court without application of independent mind on the basis of order dated 2‑4‑2002, without adverting to the subsequent orders; therefore. the learned trial Court would not justify invoking penal provisions of Order XVII, rule 3, C.P.C He further submits that the case was not adjourned for 9‑1‑2003 on the request of the appellant as is evident from order dated 10‑11‑2002. He further submits that the word "forthwith" mentioned in Order XVII, rule 3, C.P.C. does not mean on the same day, but the learned trial Court decided the case on the same day which is also not in accordance with law, therefore, the impugned order dated 9‑1‑2003 and the impugned judgment and decree dated 9‑1‑2003 are not inconsonance with law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:‑‑

"Moulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and others (PLD 1971 SC 434).

Qutab‑ud‑Din v. Gulzar and 2 others (PLD 1991 SC 1109).

Nasim Javaid v. National Bank of Pakistan (PLD 1985 SC 91)".

He further submits that the law favours decision on merit. In support of his contention, he relied upon "Pakistan Burmah Shell Ltd. v. Tariq Brothers "(1997 CLC 761). He further submits that Order XVII, rule 3, C.P.C. is penal in character; therefore, it is the duty and obligation of the Courts to take extraordinary care before invoking the penal provision against the party. He further submits that the learned counsel of the appellant and witnesses were present before the learned trail Court till 1‑00 p.m. on the said date and thereafter, the appellant's counsel appeared before the learned trial Court and came to know that right of defence for producing of evidence of the appellant, was closed. In support of his contention, he relied upon "Mst. Arifa Amjad and others Abbas Tayyab Dar and another" (1990 CLC 1743) and "Abdur Rehman's case (1990 ALD 672(2).

4. The learned counsel of the respondent submits that 11 opportunities were granted to the appellant by the learned trial Court, but the appellant failed to avail the said opportunities and failed to produce his evidence, therefore, the learned trail Court has no other option except to close the right of evidence of the appellant, keeping in view his conduct. In support of his contention, he highlighted the following orders of the learned trial Court:‑‑

"30‑10‑2001, 10‑1‑2002, 2‑4‑2002, 6‑5‑2002, 29‑6‑2002, 9‑2‑2002, 18‑11‑2002, 10‑12‑2002 and 9‑1‑2003."

He further submits that it is discretion of the learned trial Court to strike off defence of appellant, for production of his evidence and the learned trial Court has exercised its discretion judicially, therefore; this appeal is liable to be dismissed. He further submits that the superior Courts upheld the decision of the learned trial Court, where four and six opportunities have been granted to the party but party failed to produce his evidence; whereas in the present case, 11 opportunities were granted to the appellant by the learned trial Court, but the appellant failed to produce his evidence, therefore, the impugned judgment and decree are in accordance with law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:‑‑

Sajida Mussarrat v. Muhammad Shjafi and 2 others (1993 CLC 1514).

Haji Muhammad Abdullah v. Muhammad Riaz (PLD 1992 Lah 237).

Asian Associated Agencies v. Pakistan through Secretary. (1989 SCMR 2029).

Muhammad Bashir v. Mst. Iqbal Begum and another (1998 CLC 333).

Fateh Sher v. Muhammad Zubair (2003 SCMR 797).

Executive Engineer v. Messrs Tour Muhammad and Sons and others (1983 SCMR 619).

He further submits that the appellant filed the application under section 151, C.P.C. before the learned trial Court on 9‑1‑2003, which was dismissed by the learned trial Court vide order dated 25‑2‑2003 and the plea of the appellant before this Court, was rejected by the learned trial Court, therefore, judicial proceedings cannot be disturbed or set aside on the basis of affidavit of the party in view of Article 129‑E of Qanun‑e Shahadat Order, 1984. In support of his contention, he relied upon "Muhammad Nawaz's case" (PLD 2004 Lahore 21).

5. The learned counsel of the appellant in rebuttal submits that the learned trial Court misunderstood the presence of the parties on the said date. In fact, the learned counsel of the appellant and appellant were present till 1‑00 p.m. in the Court below; whereas the learned counsel of the respondent was not present before the learned trial Court till 1‑00 p.m. on the said date, as is evident from reply submitted by the respondent‑defendant in application filed by the appellant before learned trial Court.

6. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record.

7. It is better and appropriate to reproduce J the basic facts in chronological order to resolve the controversy between the parties:‑‑

(i) The appellant filed a suit for declaration, permanent injunction, compensation and damages amounting to Rs.7,60,70,969 in the Court of Civil Judge, 1st Class, Lahore, on 9‑9‑2000.

(ii) The respondent‑defendant filed written statement controverting the allegations levelled in the plaint.

(iii) Out of divergent pleadings of the parties, the learned trial Court framed the aforesaid issues on 3‑3‑2001 and adjourned the case for evidence of the appellant‑plaintiff for 28‑5‑2001.

(iv) The relevant orders of the learned trial Court till the evidence of the appellant was closed and the operative part of impugned judgment and decree passed by the learned trial Court on 9‑1‑2003 are reproduced hereunder to resolve the controversy between the parties:‑‑

The operative part of the impugned judgment and decree dated 9‑1‑2003:

"After framing of the issues, the case was fixed for plaintiff's evidence on 28‑5‑2001. The plaintiff was given ample opportunities to produce evidence but he failed to do so. On 2‑4‑2002, last and final opportunity subject to dusts of Rs.200 was granted to the plaintiff for production of evidence. The case was fixed for the plaintiff's evidence on today i.e.9‑1‑2003, but no witness on behalf of the plaintiff turned up in spite of repeated calls, so in this view of the matter, the plaintiff's right to adduce evidence is closed under Order XVII, rule 3 of C.P:C."

8. In case the aforesaid relevant order, the impugned judgment and decree are put in juxtaposition, then .it is crystal clear that the learned trial Court has closed the right of defence for production of evidence of the appellant on the basis of order dated 2‑4‑2002, in which last and final opportunity was granted to the appellant subject to payment of costs at Rs.200. The subsequent order dated 6‑5‑2002 also reveals that costs was paid and the case was adjourned for evidence for 29‑6‑2002 as three witnesses of the appellant were present in the Court, as is borne out from order dated 6‑5‑2002. On 29‑6‑2002, the case was adjourned on the request of the appellant‑plaintiff's counsel as no witness of the appellant was present in the Court and the case was adjourned on 9‑9‑2002. On 9‑9‑2002, the Presiding Officer was on leave and the case was adjourned for 18‑11‑2002. On 18‑11‑2002, the case was adjourned on the request of the appellant‑plaintiff's counsel for 10‑12‑2002. On the said date, the appellant was present alongwith his one witness and the case was adjourned for 9‑1‑2003.

9. It is pertinent to mention here that in the main body of this order, it is not clear that on whose request, the case was adjourned and body of main order also does not contain "Qatai Akhri Moqqa" (last opportunity) and the evidence of the appellant was closed by the learned trial Court not on the basis of order dated 10‑12‑2002 and 9‑1‑2003 but on the basis of order dated 2‑4‑2002, which order has lost it efficacy in view of subsequent orders dated 6‑5‑2002 and 9‑9‑2002, coupled with the facts that the order dated 10‑12‑2002 does not reveal at all that on whose request, the case was adjourned for 9‑1‑2003, therefore, the order and the impugned judgment and decree qua closure of right of defence of the appellant for production of his evidence, is not in accordance with law laid down by the Honourable Supreme Court in Qutab‑ud‑Din v. Gulzar and 2 others (PLD 1991 SC 1109) supra.

10. In case, the aforesaid facts and orders are put in juxtaposition then it is crystal clear that the learned trial Court has passed the order without application of mind as is evident from the operative part reproduced above in which evidence of the appellant was closed by the learned trial Court, on the basis of order dated 2‑4‑2002. It is settled principle of law that Courts are duty bound to decide the controversy between the parties after applying its independent mind, as per principle laid down by the Honourable Supreme Court in Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 SC 173). Even otherwise, the public functionaries are duty bound to decide the controversy between the parties with reasons after addition of section 324‑A in the General Clauses Act, as per principle laid down by the Honourable Supreme Court in M/s Airport Support Service v. The Airport Manager; Karachi, Airport" (1998 SCMR 2268) and Zainyar Khan v. Chief Engineer C.R.B.C. (1998 SCMR 2419). It is also settled principle of law that Order XVII, rule 3 applies to a case where time has been granted to a party at his instance to produce evidence or to perform, any other necessary action for the progress of the case and will not apply unless default has been committed by such party in doing act for which time was granted, as per principle laid down by Honourable Supreme Court in Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and others, (PLD 1971 SC 343) supra. The provision of Order XVII, rule 3, C.P.C., cannot invoke on the date, which has not been fixed at the request of the defaulting party, as per principle laid down by the Honourable Supreme Court in Jindwadda v. Abdul Hamid (PLD 1990 SC 1192). It is admitted fact that the evidence of the plaintiff/appellant was closed on the score that he failed to produce the evidence on successive dates, when the relief of permanent injunction and damages claim on the basis of contents' of the plaint admittedly, a very valuable of both the parties. It is pertinent to mention here that the appellant has filed suit for permanent injunction and damages amounting to Rs.7,60,70,969 by affixation of court‑fee at Rs.15,000 and also fixed the same court‑fee on the appeal filed by the appellant before this Court, therefore, the appellant should have not been knocked out on technical ground, as per principle laid down by this Court in Akbar Jan's case (1996 MLD 242). It is also settled principle of law that power conferred on Court. under Order XVII, rule 3, C.P.C. is very drastic which should be used in very extraordinary exceptional case, such‑like cases, when the Court is satisfied that the patty is trifling with Court or is contumacious the Court proceedings. In arriving to this conclusion, we are fortified by the law laid down in Abdul Rashid's case (NLR 1981 Appeal Cases 88). It is no doubt that it is discretion of the Court to close the right of defence of evidence of the plaintiff‑appellant under Order XVII, rule 3, C.P.C. but the discretion is to be exercised judicially on relevant consideration in the light of attending facts and circumstances which should not reveal arbitrariness. In arriving to this conclusion, we are fortified by the law laid down in Muhammad Siddiq's case (1995 CLC 431). It is also settled principle of law that earlier adjournment on the request of the party would not constitute valid basis for closure of his evidence and on subsequent date to which the case was not adjourned at his request. In arriving to this conclusion we are fortified by the law laid down in Javed Akhtar Nawaz's case (1990 CLC 1122). It is also settled principle of law that as mentioned above, law favours the decision on merits and technical knock out is not intention of law. In arriving to this conclusion, we are fortified by the law laid down in the following judgments:,‑‑

"Muhammad Din's case (1992 ALD 670), Zahoor Ahmed's case (1999 SCMR 105)"

As mentioned above the previous default should not be taken into account as per law laid down in Musa and others v. Faqiria (1985 CLC 2929). It is also settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts and every judgment must be read as applicable to the peculiar facts proved or assumed to be proved, as per law laid down by the Honourable Supreme Court in Trustee Board of Karachi's case (1994 SCMR 2213). The judgments cited by the learned counsel of the respondents, are distinguished on facts and law in view of the aforesaid discussion.

In view of what has been discussed above, we set aside the impugned order and judgment and decree dated 9‑1‑2003 and consequently, the appeal is accepted with costs. The parties are directed to appear before the learned trial Court on 3‑5‑2004, and the learned trial Court on the said date, shall provide one opportunity to the appellant to produce his whole evidence on the next date, subject to payment of cost at Rs.10,000. This cost would be deposited by the appellant in one of the following institutions:‑‑

(i) Lahore High Court Bar Association Dispensary.

(ii) Gulab Devi Hospital.

(iii) Shaukat Khanum Hospital.

(iv) Gangaram Hospital.

M.H./T‑12/L Case remanded.