Find a Lawyer

‑‑‑S. 115 & O. XVII, r. 1 (3)‑Adjournment‑Trial Court proceeding with suit contrary to provisions of O. XVII, r. 1 (3), C.P.C.‑Petitioner not producing evidence on date fixed for purpose‑Court refusing oral prayers for further time‑No opportunity to lead evidence provided to petitioner and case .dismissed without discussing and giving any finding‑=Case, held, decided contrary to provisions of O. XVII, r. 1 (3) and remanded to trial Court for affording opportunity to petitioner to produce evidence and decide same in accordance with law.‑[Evidence].

Rana Khurshid Ali for Petitioner.

Nemo for Respondent.

Date of bearing: 17th November, 1981.

This civil revision arises from the judgment and decree of the learned Additional Judge, Multan, whereby he on 18‑7‑1981 dismissed the appeal filed by Malik Muhammad Abdullah and others against the judgment and decree dated 23‑5‑1981 passed by the learned Civil Judge, Shujabad, dismissing the, suit for declaration filed by the petitioners plaintiffs and Muhammad Younas and Ali Sher respondents Nos. 2 and 3. It is to be noted that Muhammad Younas and Ali Sher were originally the plaintiffs. Since they did not join the revision, they were impleaded as respondents by the petitioners.

2. The facts giving rise to this petition are that Malik Muhammad Abdullah filed a suit for declaration to the effect that they were entitled to use the public road as marked in the map annexed to the plaint and as a consequential relief they prayed for injunction to restrain defendant‑respondent No., 1. from interfering into the use of road as public passage.

The defendant‑respondent No. 1' filed written statement. He raised preliminary objection and denied the averments of the plaint. The pleadings gave rise to the following issues‑

(1) Whether the suit is liable to be dismissed for preliminary objectionNo. 1 in the written. statement

(2) Whether court‑fee has not been affixed according to law

(3)Whether this suit cannot proceed in its present form

(4)Whether the plaintiffs are entitled to the relief prayed for by them

(5) Relief. and. the suit was dismissed with the following observation :‑

Feeling dissatisfied the petitioners‑plaintiffs filed an appeal, which, too, was rejected by the learned Additional District Judge, Multan. Hence this petition. ,

3. Learned counsel for the petitioners submits‑

(i) that when petitioner No. 1 reached the Court‑premises at 11 a.m. he was told by his learned counsel that the suit had been dismissed at 10‑30 a:m ;‑and

(ii) that 23‑5‑1981 was the first date fixed for tire evidence add the, learned trial Court should have at least afforded one opportunity to

the petitioner to lead his evidence.

4. As against this, learned counsel for the respondent No. I contends that the impugned order was passed under Order XVII, rule .1 (3), C.P.C. The petitioners were given a long date i.e. of about six months to produce evidence and they failed to do so and, as such, the trial Court was justified in passing the impugned order.

5. I have considered the arguments advanced by the learned counsel for the parties and have also gone through the record with care.I find that after framing five issues, out of which onus of proof of issues Nos. 1 to 3 was on the defendant, the learned trial Court adjourned the case to 23‑5‑1981 for the production of evidence and that the impugned order was passed under Order XVII, rule 1 (3), C.P.C. which reads as .follows;‑

"HIGH COURT AMENDMENTS

Lahore. (i) To rule 1 add the following as sub‑rule :‑

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

The reading of sub‑rule (3) to‑ rule 1 would show that the Court in such circumstances could proceed with the suit forthwith and could no proceed to decide the suit forthwith as decided by the trial Court o 23‑5‑1981 for the following reasons :=.

(i) that five issues mentioned above had been framed in the suit out of which the burden of proof of issues Nos. 1 to 3 was on the defendant. No evidence was produced on the date fixed for the purpose and the oral prayer for further time made by the learne counsel for the plaintiffs‑petitioners was refused. The trial Cour thereafter passed the impugned order and dismissed the suit of the plaintiffs for non‑proof without giving any opportunity to the defen dants to lead evidence on issues Nos. t to 3. and without discus sin and giving any finding on the same. I am of the opinion that afte refusing‑the prayer of the plaintiffs' counsel for further time, the trial Court should have proceeded to record the defendant's evidence on issues No's. 1 to 3, if any, and should have attended to his case and position. In the instant case, it will appear that there were five issues. Issue No. 2 was with regard to .payment of the court‑fee. In the very nature of things after refusing to adjourn the case the next step to be taken by the trial court was "to proceed with the suit forthwith" i.e. to the matter of valuation and find as to whether the valuation for the purpose of Court‑fee was correct br 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 plaintiff to make good deficiency of the same and it was thereafter that the bther issues could have been attended to. I am of the opinion that if the trial Court would have 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 procedure adopted by the trial Court cannot be justified under Order XVII, rule 1 (3),. C.P.C.

(ti) After framing the issues, 23‑5‑1981 was the first date for the production of the evidence by the plaintiff. Learned counsel for the petitioner had requested for adjournment. From the trend of the impugned order it appears that the learned Civil Judge was influ enced by the sentiment and his certain observation e.g. are certainly unwarranted and cannot be approved by this Court.

6. For the foregoing reasons, the impugned order is set aside. The case is remanded to the learned trial Court with the direction that the trial Court would afford reasonable time and opportunity. to the plaintiff petitiouer to produce his evidence and would act in accordance with .law. No order as to costs. .

M Y. M. Case remanded,

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.