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First Appeal from Original Order No. 20 of 1977, heard on 29th September, 1979.

-- S. 7-Civil Procedure Code (V of 1908), O. XVII, r. 3-Guar dian, appointment of-Guardian Judge rejecting adjournment application and closing evidence of appellant under O. XVII, r. 3. C. P. C. on a date not fixed on request of appellant-Record showing appellant being not provided adequate opportunity of producing evidence---Order of Guardian Judge set aside and case remanded with direction to dispose of case expeditiously after giving appellant adequate opportunity of producing her evidence.

Abdul Aziz Khan v. Shahjahan Begum P L D 1971 S C 434 and Lal v. Ghulam Muhammad P L D 1975 Lah. 385 ref.

Riaz Anwar for Appellant. M. R. Chughtai for Respondents.

Mate of hearing; 29th September, 1979,

This order will dispose of F. A. O. No. 20 of 1977 and F. A. O. No. 21 of 1977 which arise out of the same judgment of the Guardian Judge, Sahiwal dated 18th December, 1976.

2. The facts giving rise to the filing of the two appeals may be briefly given, On 23rd July. 1971 Mst. Bismillah appellant filed an application under section 7 read with section 10 of the Guardian and Wards Act for her appointment as a guardian of the person and properties of six minors detailed below :----

S. No. Name Date of birth

(1) Msr. Robina Begum, daughter 1-3-1962

(2) Mst. Tahira Begum, daughter 28-8-1964

(3) Mst. Huma Begum, daughter 1965

(4) Mst. Bushra Begum, daughter 3-7-1966

(5) Asif Ali, son 6-12-1968

(6) Ashraf Ali, son 23-3-1971

All the minors detailed above are the sons and daughters of Agha Amjad Ali, Mst. Bismillah is the real sister of the deceased and claimed herself to be a fit person for the appointment of the guardian of the persons and properties of the minors for which she made the application specified above. On 9th September, 1971, Mst. Razia Begum, widow of Agha Amjad Ali also made an application for her appointment as guar dian of the person and the properties of the minors. The properties of the minors consist of a shop and a chaubara being Nos. 20 and 21, Block No. 4, Sahiwa and a house No. 499 situate in Ghas Mandi, Sahiwal. Apart from these urban properties, Agha Amjad Ali (deceased) had 39/60th share of a joint khata situate in Chair No. 188/9/AL. Sahiwal. By an order of the learned Guardian Judge dated 18th December, 1972, both these applications were consolidated and on 24th of February, 1973, only one issue was framed to the effect as to----

who from the parties should be appointed as guardian of person and property of the minors keeping in view the welfare of the minors.

The case was then adjourned to 24th March, -1973 for the evidence of the appellant on which date the daughter of the learned counsel appearing for the appellant died and therefore the case was adjourned to 19th May, 1973. On this date joint request was made by both the parties exploring the possibility of compromise and the case had been adjourned from time to time for several hearings when on 30th October, 1973 it was reported that no compromise could be effected and the case was set forth for the evidence of the appellant on 3rd February, 1974 on which date the Court was on leave. The case was therefore fixed for 27th April, 1914. The counsel for the appellant made a request for the adjournment of the case and the same was refused and the evidence of the appellant was closed under Order XVII, rule 3, C. P. C. It is also pointed out that the respondent was given adequate opportunity to lead her evi dence inasmuch as the final orders were passed on 18th December, 1976 in terms of which the application filed by the appellant was dismissed and that of the respondent allowed. Meanwhile the appellant had also made an application on 14th November, 1975 making a request to the Court for the production of her evidence which application was dismissed on 14th December, 1976 on the ground that it would amount to reviewing the earlier order of closing the evidence, of the appellant dated 27th April, 1974.

3. The learned counsel for the appellant has argued that the appellant been provided adequate opportunity for producing the and the evidence of the appellant could not be closed under Order XVII, rule 3, C. L. C. on 27th April, 1974 as this was not a result of an adjournment at her request. The learned counsel has relied on the dictum of their Lordships of the Supreme Court in a case reported as Abdul Aziz Khan v. Shahjahan Begum (P L D 1971 S C 434) in which their Lordships have been pleased to hold that the provisions of Order 17, rule 3 apply 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 any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted. The learned counsel for the appellant has further relied on a judgment of this Court reported as Lal v. Ghulam Muhammad (P L D 1975 Lah. 385). In this case it was observed by Mr. Justice Zakiuddin Pal that since the adjournment had not been granted at the instance of the party against whom the orders under rule 3 had been passed, the provision of this rule was not applicable. Learned counsel for the respondent argued that the application for additional evidence was made after mire than one year of the passing of the order dated 27th April, 1974 and therefore the application was rightly dismiss ed. This order of rejecting application is not relevant. The only point is whether the order dated 27th April, 1974 could be justified in view of the law laid down by their Lordships of the Supreme Court and several other judgments on the point It would be seen that 27th April, 197 was not the date at the request of the appellant, therefore no orders under Order XVII, rule 3 would be passed under the circumstances of the case It also seems from the record that the appellant had not been provided adequate opportunity of producing her evidence. On 3rd of February, 1974 when the case had been adjourned for 27th April, 1974 the Court was on leave. This appeal is therefore accepted and the order of the learned Guardian Judge, Sahiwal dated 18th December, 1976 is set aside. The learned Guardian Judge is directed to expeditiously dispose of these two applications after giving the appellant adequate opportunity of pro ducing her evidence. However, it is made absolutely clear that the in terim arrangement shall continue till the final disposal of the two applica tions. Keeping in view of the circumstances of the case there will be no order as to costs.

M. Y. M. Appeal accepted.

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