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Civil Petition No.. 133‑R of 1984, decided on 24th November, 1984.

(On appeal from the judgment and order, dated 27‑2‑1984 of the Lahore High Court, Rawalpindi Bench, in R.S.A. No. 19 of 1984).

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O. XVII, r.3‑ Adjournment sought by defendant through counsel‑‑No objection by plaintiff would not amount to granting time to defendant at his request‑ Court not justified to invoke provision of O. XVII, r.3, C.P.C. for closing defendant's evidence‑‑Judgment passed on basis of evidence produced by plaintiff only set aside by High Court and case remanded for deciding afresh after affording opportunity to defendant to produce evidence‑‑Leave to appeal refused.

Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum P L D 1971 SC 434 and Executive Engineer, Peshawar v. Messrs Tour Muhammad & Sons and 4 others 1983 S C M R 619 distinguished.

Bashir Ahmad Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Sh. Zamir Hussain, Advocate Supreme Court and Ch. Ghulam Dastg1r, Advocate‑on‑Record for Respondents.

Date of hearing: 24th November 1984.

‑ The plaintiff in a pending civil suit, by this petition, seeks leave to appeal against the judgment of the Lahore High Court, dated 27‑2‑1984 whereby his second appeal was dismissed in limine.

The petitioner had instituted a civil suit in 1975 claiming specific performance of an agreement to sell an immovable property in his favour entered into by respondent No.l. On the 5th of June 1983 when the case came up before the trial Court for recording the evidence of the respondents and the statement of the petitioner, a request was made by the counsel of the petitioner seeking an adjournment on the ground that the petitioner was an Advocate and was busy before the Cantonment Board. The counsel representing respondent No.l said that he had no objection to the adjournment though some of his witnesses were present on that day. The Court adjourned the case to the 2nd of July, 1983 making it clear that no further adjournment would be granted as the case was very old. On the adjourned date i.e. the 2nd of July 1983 the petitioner was personally present but the defendant was not present nor were his witnesses. The counsel representing the respondents in the trial Court sought another adjournment which was refused by the trial Court which closed the case under Order XVII, rule 3, C.P.C. and adjourned it to 18th of July 1983 for arguments which were heard on that day and the case decided ultimately in favour of the petitioner on 3rd of October, 1983.

The respondent No.l appealed against the judgment and decree and. the first appellate Court held as follows:‑

"'The learned Court below was not justified to invoke provision of Order XV I I , rule 3 , C . P . C . for closing the evidence of appellants on 2‑7‑1983 and as such committed illegality. The Court below passed the impugned judgment and decree on the basis of evidence produced by the respondent /plaintiff only. The law desires adjudication of matters on merits. I, therefore, accept the appeal, set aside the impugned judgment and decree and remand the case to the Court below with direction to afford opportunity to the appellants /defendants to produce their evidence and then to decide the case afresh according to law. Parties are directed to appear before the trial Court on 29‑2‑1984."

The petitioner filed a second appeal in the High Court which was dismissed in limine upholding the interpretation of the first appellate Court of the provisions of Order XVII, rule 3, C.P.C. and its applicability to the facts of the case.

The contention of the learned counsel for the petitioner Mr. Bashir Ahmad Ansari, Advocate, is that the granting of an adjournment at the request of the defaulting party is not a pre‑condition for the exercise of powers under Order XVII, rule 3, C.P.C. and 'even if this was so respondent No.l who had concurred with the request of the petitioner for adjournment would tie deemed to have obtained it from the Court and the order passed on 2‑7‑1983 by the trial Court would be proper and just. In support he has cited Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum P L D 1971 S C 434 and Executive Engineer, Peshawar v. Messrs Tour Muhammad & Sons and 4 others 1983 SCMR 619.

We find that after the dismissal of his second appeal by the High Court and during its pendency and the pendency of the petition before us the evidence of the parties has concluded before the trial Court and the case is ripe for judgment. The cases' cited by the learned counsel for the petitioner do not support the proposition in the broad terms in which he wants to enunciate and uphold them. In the case of Executive Engineer, Peshawar, it was not a case of closure of the evidence as of proceeding ex parte against the defendants who had failed to file the written statement. In the case of Abdul Aziz Khan the provisions of Order XVII, rule 3 , C . P . C . had directly come up for consideration and after re‑appraising the rule, the law was enunciated in the following words:‑

"It will be seen that this rule applies 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."

In the particular case before us we find that the petitioner had requested for the adjournment and the request was made on his behalf by his counsel. The respondents had not objected to it. This would not amount to granting time to him at his request.

We need not deal with the question at any greater length because we find that all the evidence already having come on the record a decision on merits without excluding any portion of it would be the more appropriate course. It is not a fit case for leave to appeal, which is hereby refused.

M.I. Leave refuse

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