Haji MUHAMMAD RAMZAN SAIFI vs Mian ABDUL MAJID AND OTHERS

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment dated 27th October, 1985 of the Lahore High Court ; whereby a Regular Second Appeal arising out of a civil suit filed by the appellant, was allowed and the case was remanded to the trial Court for further proceedings.

2. ' During the pendency of the suit the respondent-plaintiff was allowed an adjournment on 29-3- 1983 on payment of Rs, 200 as cost for production of evidence on 18-4-1983. On 18-4-1983 the Presiding Officer of the Court was on leave. The case was put up before another learned (duty)

3. Judge, who further adjourned the case on account of the absence of the original learned trial Judge, on leave. This adjournment to 22nd of June, 1983 was also for the production of evidence by the plaintiff-respondent. It is noted in the order, dated 18-4-1983 that 22nd June, 1983 was the last dare and further that the cost directed on 29-3-1983 had already been paid. On the next date of bearing on 22nd June, 1983, the respondent-plaintiff did not produce evidence, he requested for further adjournment which was refused and by the application of provisions contained in Order XVII, rule 3, C. P. C. His case was closed and thus accordingly the suit was dismissed for lack of evidence. This order was affirmed in first appeal. The second appeal before the High Court filed by the respondent-plaintiff, was, however, accepted on the main ground that the adjournment granted on 18-4-1983 was not at the instance of the plaintiff-respondent ; it was on account of the absence, on leave, of the Presiding Officer of the Court, therefore, the provisions contained in Order XVII, rule 3 were not attracted ; because it was necessary thereunder that the relevant adjournment should have been sought by the party concerned.

4. ' Learned counsel for the petitioner has raised three arguments in support of this petition. Firstly, that it is not now necessary for the application of Order XVII, rule 3, that the time should have been granted by adjourning the case at the instance of the party concerned. He has relied on the following observation by this Court in Executive. Engineer, Peshawar v. Messrs Tour Muhmmad & Sons and 4 others (1) :- "It is immaterial whether the adjournment was granted at the instance of the party or for other reasons."

5. ' Learned counsel failed to appreciate the context in which the observation was made ; namely, that the party at whose instance the time was granted to perform a certain act was not only a defaulter in that behalf but had also absented himself. In the circumstances of that case, the

(1) 1983 SCMR 619 absence of the party was not to be ignored and this, it was noted that the fact that adjournment was not granted at its instance will not make any difference. The additional factor being the absence of the party itself, that case is thus clearly distinguishable. The law was laid down by this Court on the question raised by the learned counsel more than a decade ago in Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (1) as follows :- "that this rule (rule 3 of Order XVII, C. P. C.) applied 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 an other act necessary for the progress of the suit and will not appeal unless default has been committed by such party in doing the act for which the time was granted."##TE# ' This view has been reiterated in many other cases. There is mass of case law from other superior Courts on the point, that is why, learned counsel ultimately agreed that the point he was raising was against the consensus for the last nearly 100 years and that he had raised the same only on account of the observation made in the case of Maulvi Abdul Aziz Khan which has been explained above. Therefore, there is no force in the first point raised by the learned counsel.

6. ' Secondly, he contended that on an occasion earlier than the last date of adjournment i. e. 18-4- 1983 the case had in fact been adjourned at the instance of the respondent-plaintiff, therefore, relying on Faiz Bakhsh v. District Judge, Multan and others (2) he contended that it did not make any difference that on the said date i. e. 18-4-1983 the adjournment was granted not at the instance of the respondent but for another cause, namely, the absence of the Presiding Officer.

7. It is not necessary to examine this point in detail, because there is factual distinction between the two cases. If a case is being adjourned from time to time on account of an initial request made by a party for certain purpose and each time that request is deemed to have bee notionally included in the repeated order the case might be different and it might require fuller examination. And in that eventuality the observation made by this Court in Syed Tasleem Ahmed Shah v. Sajawal Khan etc. (3 would be relevant, and in that case, the resolution of the controversy raised by the learned counsel for the petitioner might go against him. But in this case even if earlier the case was adjourned at the instance of the respondent-plaintiff, the adjournment granted on 18-4-1983, it cannot be denied was on account of the absence of the Presiding Officer. Therefore, there is no force in the second contention either.

8. ' Thirdly, the learned counsel relying on rule 5 of Order XVII which relates to an adjournment when the Presiding Officer is absent and a ministerial official is to issue a slip of paper specifying the next date, contended that the adjournment granted on 18-4-1983 was not strictly speaking, under rule 5, Order XVII ; because the ministerial official instead of issuing the slip of adjournment placed the case before a Duty Civil Judge who passed the order of adjournment. Hence it should not have been treated as an adjournment granted on account of the absence of the Presiding Officer. And because the adjournment still remained to be for

(1) PLD 1971-SC 434 (2) 1983 CLC 2437 (3) 1985 SCM R 585 purpose of production of evidence by the respondent-plaintiff it should be held that it was at his instance.

9. On the question of interpretation of the order, dated 18-4-1983, it is not possible to agree with the learned counsel for the petitioner. The following words and expression used in the said order are significant : {{URDU TEXT}} ' This shows that the word {{URDU TEXT}} (meaning "therefore") plays a .Significant role in the order.

10. The reason for adjournment was the absence of the Presiding Officer who was on leave. It is a different matter that, while adjourning the case the plaintiff was directed not only to produc his evidence on the next date but was warned that it would be the last date. Looked at from whatever angle the adjournment on 18-4-1983 for 22-6-1983 was not, therefore, at the instance of the plaintiff-respondent.

11. ' None of the arguments advanced by the learned counsel for the petitioner has any force, leave to appeal is accordingly refused.

12. PLD 1986 Supreme Court 132 [Shariat Appellate Bench {{URDU TEXT}} - =1985 ; - 69 J./ I.:41 1,? Csj - 16-9-1985'

(a) Offence of Zinn (Enforcement of Hudood) Ordinance (VII of 1979)- S. 10 (2)--- Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)- S. 10(2)-Criminal Procedure Code (V of 1898), S. 342-

(b) Constitution of Pakistan (1973), Art. 203-F-Offence of Zina (Enforce- ' meet of Hudood) Ordinance (VII of 1979) - S. 10(2)-

(c) Constitution of Pakistan (1973), Art. 203-F -Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-

(e) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)- --Ss. 10(2) & 5(2)- ( f) Constitution of Pakistan (1973), Art. 203- F-Offence of Zion (Enforcement of Hudood) Ordinance (VII of 1979)- -- Ss. 10(2) & 5 (2)

(g) Constitution of Pakistan (1973), Art. 203-F-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)- -- Ss. 10(2), 5(2) & 8(b)-Criminal Procedure Code (V of 1898), S. 423- L `,.)_NJ J-ul .)-1j1 4-1Sr SA) 5 C-IY0.1i {{URDU TEXT}} #TBS #TBE