MUHAMMAD SIDDIQUE vs Syed ZULFIQAR HAIDER and others

' MUNIR A. SHAIKH, J.---The plaintiff appeals against the judgment and decree dated 8-6-1992 passed by the learned trial Court through which after closing his evidence under Order 17, Rule 3, C.P.C. His suit has been dismissed for want of evidence.

2. The appellant filed a suit for specific performance of agreement of sale. The case was fixed for recording the evidence of the appellant on 31-5-1992. On this date learned counsel for the appellant requested for grant of adjournment because his son-in-law had been murdered. The Court adjourned the case to 8-6-1992 with the observation that the same was the last opportunity granted to the appellant for production of his evidence. However, on 8-6-1992 the learned counsel for the appellant requested the learned Presiding Officer in his Chamber to adjourn the case because he had not yet recovered from the shock suffered by him due to murder of his son-in-law but he declined to accept the request. The Court proceeded to close the evidence of the appellant and dismissed the suit.

3. We have heard learned counsel for both the parties. Under Order 17, Rule 3, C.P.C. No doubt a discretion was vested with the learned trial Court in the matter of grant of adjournment to a party and in case of failure of a party to produce evidence for which an opportunity was granted to him to proceed to close evidence but according to the firmly settled law such discretion was to be exercised judicially on relevant consideration in the light of attending facts and circumstances of each case and not whimsically or arbitrarily. In this case the fact that son-in-law of the learned counsel for the appellant had been murdered and he was not feeling himself to be in a fit-state- of-mind to attend to his cases on account of which a request for adjournment was made. In our view the discretion should have been exercised in the interest of justice in favour of the appellant for grant of another adjournment in the case which would have met the ends of justice as the law favours adjudication of the rights of the parties on merits rather than their disposal summarily.

4. For the foregoing reasons the judgment dated 8-6-1992 passed by the learned trial Court is not sustainable. This appeal is accepted and the impugned judgment and decree are set aside and the case remanded to the trial Court to decide the same on merits after giving one opportunity to the appellant to produce evidence. There will be no order as to costs.

5. The parties are directed to appear before the trial Court on 20-12-1993. On the said date the Court shall fix the date for production of evidence by the appellant. The suit shall be decided within one month from the said date positively and compliance reported.