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Second Appeal from Order No. 3 of 1964, decided on 6th May 1970.

O. XVII, rr. 1(3) & 3 --Evidence not produced by either party on date fixed for purpose --Plaintiff's prayer for adjournment and further time refused by Court‑Court in such circumstances, held, should "proceed with the suit forthwith" under r. 1(3) and not "proceed to decide the suit forthwith" under r. 3‑Provisions of rr. 1(3) & 3 distinguished.

The following two issues had been framed in the suit:‑

(1) Whether the suit is within time.

(2) Whether the suit has been properly valued for purposes of court‑fee and jurisdiction.

No evidence was produced on the date fixed for the purpose and the plaintiff's oral prayer for further time was refused. The trial Court, thereafter, passed an order closing evidence of parties and proceeded to refer to certain documents on file on the basis of which it decided that the suit had become time‑barred. The lower appellate Court observing that rule 3, Order XVII, Civil Procedure Code was not applicable set aside the order of the trial Court. The order of appellate Court was challenged before High Court.

Held: A comparison of the rules 1(3) and 3, Order XVII of the Civil Procedure Code, 1908 will show that under sub‑rule (3) of rule 1 of Order XVII, what a Court can do when an adjournment is not granted is to "proceed with the suit forthwith" While in rule 3 of Order XVII the Court is to "proceed to decide the suit forthwith". This shows that in Order XVII, rule 3, decision is to be on the merits of the case on the basis of the material till then produced in evidence. While under sub‑rule (3) of rule 1 of Order XVII, it is not the decision which is to be given forthwith, but further steps in the progress of the suit are to be taken. As for example if some witnesses had been allowed to be produc ed, who are not being produced on the relevant date, then the Court may refuse to adjourn the case for production of those witnesses over again and may ask the party concerned to produce any other evidence which may be present on that date or to himself appear in the witness‑box. Similarly, if in this way the plaintiff's evidence is closed, the Court may proceed to record the defendant's rebuttal evidence and attend to his case and position. Applying this formula to the facts and circumstances of the present case, it will appear that there were two issues in the case, namely, of valuation and limitation. In the very nature of things, after refusing to adjourn the case, the next step to be taken "to proceed with the suit forthwith", was to attend to the matter of valuation and find as to whether the valuation for purposes of court‑fee and jurisdiction was correct or not. If it was not correct, then the Court should have first got that corrected and if any additional court‑fee was required he should have asked the plaintiffs to make good the deficiency of the same under Order VII, rule 11 read with sections 148 and 149 of the Civil Procedure Code, 1908, and it was thereafter that the question of limitation could have been attended to. If the Court had proceeded in this way, it would have realised that there was a possibility of its order being different which may have affected its discretion even in the matter of adjournment. It will &us appear that the procedure adopted by the trial Court cannot be justified either under Order XVII, rule 1(3) or Order XVII, rule 3. As a matter of fact, rule 3 of Order XVII had no application to the facts and circumstances of the case and it was covered by sub‑rule (3) of rule 1 of Order XVII.

Maulvi Sirajuddin Pal for Appellants.

Mohammad Daud Mian for Respondents Nos. 1 to 4.

Riasat Ali for Respondent No. 5.

Respondents Nos. 6 and 7: Ex parte.

Date of hearing: 6th May 1970.

Muhammad Ilyas etc. (hereinafter called the plaintiffs), filed two suits against Mst. Zaitun Begum etc. (hereinafter called the defendants), for a declaration that the properties mentioned in the plaint were wakf and certain sales thereof were void; illegal and of no effect on the rights of the plaintiffs with consequential relief of possession. The proceed ings in the two cases were consolidated and both were tried together.

2. On the pleadings of the parties, the learned Civil Judge framed two preliminary issues (in each case), which read as follows:‑

(1) Whether the suit is within time (O. P.)

(2) Whether the suit has been properly valued for purposes of court‑fee and jurisdiction (O. P.)

3. 26th of January 1963, was the date fixed for evidence of the parties. On that date, respondents Nos. 5 and 6 filed an application praying that since Auqaf Department had issued a notice or notices treating the property as wakf, therefore, the same was a necessary party and should be impleaded as such in these cases. This application took sometime for adjudication and was ultimately dismissed on the 14th of March 1963, when the case was adjourned to the 27th of April 1963, for pro duction of evidence of the parties. On the said date, no evidence was produced by either party. Counsel for the plaintiffs made an oral request for further time, but the Court refused to grant the same and passed an order closing their evidence. After doing so, the learned Civil Judge proceeded to refer to certain documents which were on the file and observed that from the said documents the sales appeared to be of the years 1926, 1929 and 1946 and as such both the suits were clearly time- barred. In this way, he decided issue No. 1 relating to limitation against the plaintiffs and dismissed the suits. The order of the learned Civil Judge is a brief one and may be reproduced for facility of reference. It reads as follows:‑

4. The plaintiffs filed appeals in both the cases which were heard by Mr. Sher Bahadur Khan, Additional District Judge, Lahore (as then his Lordship was) on the 19th October 1963. The learned Additional District Judge observed that the perusal of the final order of the learned Civil Judge showed that he proceeded under the provisions of Order XVII, rule 3, C. P. C. After so observing, he held that on the facts, and the circumstances of the case, the said rule was not applicable and the Court was not justified in disposing of the matter in the manner hereinbefore indicated. He further held that the Court did not examine the possibility of granting adjournment after burdening the plaintiffs with costs. Holding the order of the learned Civil Judge, as untenable, he accepted the appeals and remanded the cases to the learned Civil Judge for proceeding with them afresh in accordance with law. The vendee defendants have come up in second appeal to this Court. This judgment will dispose of both the appeals viz., S. A. O. No. 3 of 1964 and S. A. O. No: 4 of 1964.

5. Before proceeding further, it is necessary to reproduce Order XVII, rule 1 and Order XVII, rule 3 of the Code of Civil Procedure. They read as follows:

(3) Where sufficient cause is not shown for the grant of an adjournment under sub‑rule (1) the Court shall proceed with the suit forthwith.

Order XVII, rule 3:‑

A comparison of the above rules will show that under sub rule (3) of rule 1 of Order XVII, what a Court can do when an adjournment is not granted is to "proceed with the suit forthwith". While in rule 3 of Order XVII, the Court is to "proceed to decide the suit forthwith".

This shows that in Order XVII, rule 3, decision is to be on the merits of the case on the basis of the material till then produced in evidence. While under sub‑rule (3) of rule I of Order XVII, it is not the decision which is to be given forth with, but further steps in the progress of the suit are to be taken. As for example if some witnesses had been allowed to be produced, who are not being produced on the relevant date, then the Court may refuse to adjourn the case for production of those witnesses over again and may ask the party concerned to produce any other evidence which may be present on that date or to himself appear in the witness‑box. Similarly, if in this way the plaintiff's evidence is closed, the Court may proceed to record the defendant's rebuttal evidence and attend to his case and position. Applying this formula to the facts and circumstances of the present case, it will appear that there were two issues in the case, namely, of valuation and limitation. In the very nature of things, after refusing to adjourn the case, the next step to be taken "to proceed with the suit forthwith", was to attend to the matter of valuation and find as to whether the valuation for purposes of court‑fee and jurisdiction was correct or not. If it was not correct, then the Court should have first got that corrected and if any additional court‑fee was required he should have asked the plaintiffs to make good the deficiency of the same under Order VII, rule 11 read with sections 148 and 149 of the C. P. C., and it was thereafter that the question of limitation could have been attended to. If the Court had proceeded in this way, it would have realised that there was a possibility of its order being different which may have affected its discretion even in the matter of adjournment. It will thus appear that the procedure adopted by the learned Civil Judge cannot be justified either under Order XVII, rule 1 (3) or Order XVII, rule 3. As a matter of fact, the learned counsel for the appellants frankly conceded that rule 3 of Order XVII had no application to the facts and circumstances of the case and that he would invoke only sub rule (3) of rule 1 of Order XVII. As I have held earlier even, that rule has not been properly applied and, therefore, the judgments and orders of the learned trial Court cannot be maintained on any count. Another illegality which was committed by the learned Civil Judge was that he read into evidence certain sale‑deeds on the record which have neither been tendered nor produced and nor proved by anybody. The Court could not take into evidence the said documents when it had not allowed the plaintiff to produce any evidence and at the same time had not called upon the defendants to lead any evidence whatsoever. Such a course of action on the part of the learned Civil Judge is not warranted by any of the provisions hereinbefore quoted.

6. The upshot of the above discussion is that ‑the appeals have no merits and are liable to be dismissed which I hereby do. The parties shall bear their own costs throughout.

A. E. Appeals dismissed.

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