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Civil Revision No. 393 of 1985, decided on 11th January, 1986.

‑‑ S. 115‑Revisional jurisdiction, exercise of‑Plea, neither raised before trial Court nor specific issue claimed, held, would preclude raising of such plea or specific issue in revisional jurisdiction of High Court.

‑‑‑‑S. 115‑Revisional jurisdiction ‑Production of document‑Objec tion to‑Objection to formal proof of document not taken at the time when document was produced and exhibited‑No objection held, could be taken subsequently for first time in revision. [Evidence].

Abdullah v. Abdul Karim P I.‑ D 1960 S C 140 rel.

---O. XVII, r. 3‑Production of evidence‑Default‑Effect‑Order XVI1, r. 3, Civil Procedure Code, 1908, held, would apply to a case where time was granted to party at his instance, to produce evidence, or to cause attendance of witnesses or to perform any other act necessary for progress of suit‑Default committed by party, in doing act for which time was granted would attract penalty of closing of evidence or striking off defence.

Abdul Aziz Khan v. Shahjahan P L D 1971 S C 434 rel.

‑‑‑ O. XVII, r. 1(3) (added by Lahore High Court amendment) Evidence, closing of‑Exercise of jurisdiction by trial Court‑Where trial Court in closing defendant's evidence for non‑production of same, adjourned case for evidence of plaintiff, striking off defence, held, would be perfectly justifiable under O. XVII, r. 1 (3), Civil Procedure Code, 1908.

1982 Law Notes (Lah.) 32 and Amir Hassan v. Shamim Shah Nawaz 1984 C L C 3084 ref.

‑‑‑ S. 115 ‑Revisional jurisdiction, invoking of‑Party neither filing list of witnesses at trial nor applying for issuing process to any witness, held, would be precluded by conduct to agitate against‑ order for striking off defence‑Party not challenging order of striking off defence either before trial Court, or before first appellate Court could not make any legitimate grievance against such order, in revisional jurisdiction of High Court for first time.

---Art. 117‑‑Burden of proof‑Liability of defendant for suit amount‑Proof of‑Documents produced by creditor not questioned by debtor, held, would prove liability of debtor to amount claimed by such creditor.‑‑[Burden of proof].

‑‑‑ S. 115‑Revisional jurisdiction, invoking of‑Judgment based on proper consideration of evidence on record, held, would not be open to interference by High Court in revisional jurisdiction‑Such jurisdiction, however, would be permissible where subordinate Court had committed illegality or irregularity.

Ch. Ayyaz Muhammad Khan for Petitioner.

M. A. Farrani for Respondent.

Date of hearing . 21st October, 1985.

This revision petition filed by the defendant calls in question judg ment of the learned Additional District Judge, Multan, dated 17‑12‑1984, whereby the appeal of the respondent‑bank has been accepted and its suit against the petitioner decreed.

2. Petitioner was an account‑holder of the respondent‑bank. He deposited Rs. 5,000 in his account on 28‑7‑1976. He had credit balance of Rs. 5,084.20, on 2‑9‑1976. He was to pay Rs. 13,380 to Pakistan Agricultural Development and Supplies Corporation. He; therefore,

obtained temporary overdraft for Rs. 8,295.80 from the respondent‑bank and exwuted a promissory note and other necessary documents in favour of the bank on 30‑12‑1976. He also acknowledged his liability in the sum of Rs. 9,870.50 vide confirmation slip dated 30‑12‑1977 (Exh. P. 7). Petitioner, however, failed to pay back this amount in spite of notices and verbal requests from the bank. Respondent‑bank, therefore, brought a suit against the petitioner for the recovery of Rs. 12,473 which represented the principal amount plus the interest due upto 30‑6‑1979. Petitioner contested the suit by filing a written statement which gave rise to the following issues :‑

(1) Whether the plaintiff is entitled to recover a sum of Rs. 12,473 from the defendant O. P. P.

(2) Whether the defendant is entitled to special costs under section 35‑A of C. P. C. O. P. D.,

(3) Relief.

3. Respondent‑bank produced its Manager, Hafiz Nizam‑ud‑Din, who appearing as P. W. 1 supported the case of the bank. He categori cally deposed that a sum of Rs. 12,473 was outstanding against the peti tioner upto 23‑6‑1979. Witness also produced account‑sheet of the petitioner (Exh. P. 1). pronote (Exh. P. 2), letter of arrangement (Exh. P. 3), letter of disbursement tFxh. P. 4), copy of no.ice dated 28‑d‑1979 issued by the bank to the petitioner (Exh. P. 5), acknowledge ment receipt (Exh. P. 6), confirmation slip of overdraft acknowledging the liability (Exh.'P. 7), letter of continuity (Exh. P. 8). and cheque issued by the petitioner (Exh. P. 9). This witness was not cross‑examined by the petitioner despite the opportunity given to him. Evidence of this witness was recorded on 31‑5‑1980, and the case was adjourned for the peti tioner's evidence, but he led no evidence upto 6‑12‑1982 although numerous opportunities were granted to him for that purpose at his own request and sometimes even on payment of costs. On the last mentioned date vie. 6‑12‑1982, counsel for the parties were present but neither the petitioner himself appeared nor was his evidence available. Learned trial Court. after taking note of the fact that a large number of opportuni ties had already been granted to the petitioner and he had not even paid the cots previously awarded against him, proceeded to strike off his defence by order, dated 6‑12‑1982 and adjourned the case to 12‑2‑1983 for plaintiff's evidence. Plaintiff respondent. after getting some adjourn ments. produced Fazal‑Ezid, its Manager as P. W. 2 on 12‑10‑1983, who in his statement affirmed the evidence of P. W. 1 and produced photo copy of power of attorney (Exh, P. 10) and statement of account of the peti tioner (Exh. P. 11).

4. Although the petitioner did not produce any evidence to rebut the case of the respondent‑bank. learned trial Court dismissed the res pondent's suit vide judgment, dated 9‑5‑1984 holding that the bank had failed to prove that the amount of Rs. I3,K0 was paid or deposited in the account of P. A. D. & S. C.

5. Respondent‑bank preferred an appeal which, as stated above, was allowed by the learned Additional District Judge vide the impugned judgment. Learned Additional District Judge found that amount men tioned in the cheque (Exh. P 9) "was duly transferred to the account of the payee and the amount in excess of the amount already deposited in the account of the defendant could be treated as overdraft". Learned Additional District Judge also took note of the documents Exhs. P.2, P. 3, P. 4, P. 7, and P. 8 which proved the liability of the petitioner for the amount in question. It was observed that these documents . were admitted in evidence without any objection by the petitioner. Statement of account produced in evidence showing that the amount in question was due from the petitioner was also taken into consideration by the learned Additional District Judge. As regards the assertion of the peti tioner that no amount was transferred to the account of P. A. D. & S. C., it was observed by the learned Additional District Judge that the statement of Hafiz Nizamuddin P. W. to the effect that the amount of cheque Exb. P. 9 was deposited in the account of P. A D. & S. C., was not challenged in cross‑examination nor did the petitioner care to appear as a witness to rebut it. Learned Additional District Judge also observed that the petitioner bad not even challenged the order of the learned trial Court closing his evidence. It was, therefore, concluded that the un rebutted and unchallenged evidence of the plaintiff has clearly proved the case of the plaintiff‑appellant". Findings of the learned trial Court on issue No. 1 were accordingly reversed and the suit of the bank decreed.

6. I have heard the learned counsel for the parties at considerable length. Learned counsel for the petitioner in the first instance sought to argue that proper issues arising from the pleadings of the parties were not framed which omission has caused prejudice. to the petitioner. Hi precise grievance was that the plea set up by the petitioner in his written statement was not put in issue. This argument does not merit any serious consideration for the simple reason that although the suit remained pending in the trial Court for about 5 years, petitioner admittedly neither raised this objection before the trial Court nor claimed any specific issue. Not only this, he is also not shown to have raised this point b: fore the learned lower appellate Court. In these circumstances, this objection cannot be entertained in revisional jurisdiction. Even otherwise, as the petitioner neither produced any evidence nor cross‑examined the witnesses of the respondent‑bank. he cannot be said to have suffered any prejudice owing to the alleged omission.

7. It was next contended by the learned counsel for the petitioner that the documents produced by the respondent‑bank were not duly proved. Petitioner admittedly did not raise this objection when the documents were produced and exhibited on the record. This objection cannot, therefore, be permitted to be raised at this stage. Law is very well settled that if objection to the formal proof of a document has not been taken at the earliest point of time, it cannot be taken subsequently and certainly not in appeal. Refer to Abdullah v. Abdul Karim (PLD1968SC 140). View taken in the precedent case applies with greater force when objec tion is taken for the first time in revision.

8. Learned counsel for the petitioner also took exception to the order of the trial Court, dated 6‑12‑1982 whereby petitioner's evidence was closed. Validity of this order was questioned with reference to the provisions of Order XVII, rule 3, C. P. C. Learned counsel submitted that the petitioner's evidence could not be closed on 6‑12‑1982 because on the preceding date, case was adjourned on account of the Court being on leave and not at the request .of the petitioner. According to the learned counsel, action under the penal provisions of Order XVII, rule 3, C. P. C. could only be taken if the adjournment had been sought by the petitioner for producing the evidence. There is no cavil with the proposition that rule 3 of Order XVII of the Code of Civil Procedure applies only where time is granted to a party at his own request, to produce evidence or to perform any other act necessary for the further progress of the case and such party defaults in doing the specified act. Reference in this behalf may be made to Abdul Aziz Khan v. Shahjahan (PLD 1971 SC 434) wherein it was held "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 time was granted."

In the instant case, however, the learned trial Court, in closing the petitioner's evidence and adjourning the case for the evidence of the plaintiff‑respondent, proceeded under sub‑rule (3) of rule 1 not under rule 3 of Order XVII, C. P. C. Sub‑rule (3) of rule 1 added by the Lahore High Court is as follows :‑

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

The aforequoted sub‑rule was fully attracted to the situation with which the learned trial Court was confronted on account of the conduct of the petitioner. Record shows that the petitioner had been granted numerous opportunities extending over a period of more than two years to produce evidence but he failed to lead any evidence. Not only that, learned counsel for the petitioner conceded that the petitioner did not D even file any list of witnesses nor did he ever summon any witness. In the circumstances, order of the trial Court striking off the petitioner's defence and adjourning the case for the evidence of the plaintiff‑respon dent was perfectly justified in view of the provisions of Order XVII, rule 1(3), C. P. C.

Somewhat similar situation came to be examined in the case reported as 1982 Law Notes (Lah.) 32. In the precedent case, defendant failed to adduce any evidence despite numerous opportunities. His evidence was closed on 11‑5‑1976 and the case was adjourned for plaintiff's evi dence. The order closing the defendant's evidence was purportedly made under Order XVII, rule 3, C. P. C. although on the previous date the Court was on leave. This Court upheld the contention that in the circumstances of the case, provisions of Order XVII, rule 3 were not attracted. The impugned order was, however, held to be justified with reference to the provisions of sub‑rule (3) of rule 1 of Order XVII. C. P. C. with the following observation :‑

"This provision of the rule is fully applicable to the situation with which learned Civil Judge was faced. The petitioner has already been granted much indulgence arid more than sufficient opportunity to lead evidence, but he failed‑ to adduce the same since 19‑12‑1974. In the face of these opportunities having been granted even the learned counsel for the petitioner was not in a position to contend that the petitioner was entitled to the grant of further time. His main stress was that rule 3 of Order XVII, C. P. C could not have been applied. The erroneous mention of rule 3 of Order XVII would not make the order illegal or arbitrary. The learned Civil Judge was perfectly right, in the circumstances of the case, to proceed with the case forthwith by directing the other side to produce its evidence."

In yet another case reported as Amir Hassan v. Shamim Shah Nawaz (1984 C L C 3084) order of the trial Court closing the evidence of the appellant though passed under Order XVII, rule 3, C. P. C. was upheld on the basis of the provisions of sub‑rule (3) of rule 1 of Order XVIL It was held that ' the trial Court was confronted with a situation where the appellants were not ready with their evidence and they did not show sufficient cause for obtaining an adjournment. In the circumstances, the learned trial Court could while proceeding with the suit under sub‑rule (3) (ibid) close their evidence so as to get to the next stage in the trial."

9. Apart from what has been held above, petitioner is precluded by his own conduct from agitating against the order of the trial Court closing his evidence. As noted above, petitioner admittedly never filed any list of witnesses nor did he ever apply for issuing any process to any witness It is also significant that after the petitioner's evidence was closed, case remained pending in the trial Court for a year and a half but the peti tioner did not take any steps to challenge that order. He even did no challenge the said order before the lower appellate Court as observed in the impugned order. In the circumstances, petitioner cannot make an legitimate grievance against the order in question for the first time in the present petition which is directed against the decree of the appellate Court.

10. As regards the petitioner's liability for the suit amount, I find that it is clearly established by the evidence led by the respondent‑bank which, as rightly observed by the learned Additional District Judge, is "un‑rebutted and un‑challenged". Manager of the respondent‑bank, Hafiz Nizam‑ud‑Din, apart from producing the documents showing the petitioners liability quite clearly deposed that Rs. 13,380, the amount of the cheque issued by the petitioner, were paid in the account of P. A. D. S. C. ; that the petitioner's credit balance was only Rs. 5,084.20 an he was thus given an overdraft of Rs. 8,295.80. Witness further posi tively asserted that a sum of Rs. 12,473 was outstanding against the petitioner. The witness was not cross‑examined despite the opportunity given. His statement, therefore, remained unchallenged. It may be pertinently stated that the assertion of this witness that the amount o the cheque was transferred to the account of P. A. D. & S. C. is also borne out from the statements of account Exh. P. 1 and P. 11. It is also significant that the petitioner did not question the authenticity of the documents produced by Hafiz Nizam‑ud‑Din P. W., nor did he raise any objection when they were brought on the record. It may also be note that as observed by the learned Additional District Judge, petitioner had executed the pronote Exh. P. 2, ‑letter of arrangement Exh. P. 3, letter of disbursement Exh. P. 4, confirmation slip Exh. P. 7, and letter of continuity Exh. P. 8. All these documents fully prove the petitioner' liability for the suit amount. Learned Additional District Judge, there fore, rightly relied upon these documents and the oral evidence, and reversed the finding of the trial Court which proceeded on incorrect premises and in total disregard of the evidence produced by the respon‑1 dent‑bank.

11. As discussed above, the impugned judgment of the learned Additional District Judge is based on the proper consideration of the evidence on the record. No misreading of evidence has been pointed out by the learned counsel for the petitioner. Thus, the impugned judgment which is based on findings of fact supported by evidence on record is not open to interference in revisional jurisdiction of this Court under section r 115 C. P. C. which is attracted only to those cases where the subordinate Court has committed some illegality or irregularity in exercise of its jurisdiction. No such illegality or irregularity having been committed in the instant case, this revision petition merits dismissal, and the same is hereby dismissed but there shall be no order as to costs in the facts and circumstances of this case.

A. A. Revision dismissed.

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