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Civil Revision No. 1899 of 1984, heard on 4th December, 1985.

---0. VII, R. 3--Closing of evidence--Trial Court adjourned suit of petitioner on flimsy grounds without recording evidence of witnesses of petitioner on at least five dates in spite of noticing their presence in Court and even once mentioning their names--Dismissal of suit for want of evidence--Provisions of 0. XVII, r.3 of Civil Procedure Code, 1908 being permissive and not mandatory, discretion should have been exercised by Courts below in favour of petitioner in granting adjournment on date when case was dismissed for want of evidence in circumstances.

Saeed Ahmad v. Messrs Indo Enamel Works Ltd. Lahore P L D 1954 Lah. 490 and Dhunda v. The Punjab Province P L D 1960 Lah. 786 ref.

---S. 115--Revisional jurisdiction, exercise of--Order closing case of petitioner, held, could not be sustained in view of failure of two Courts below to attend to question whether or not discretion might have been exercised in favour of petitioner--High Court in its revisional jurisdiction remanded case to be tried in some other Court in accordance with law.

Hamid Khan for Petitioner.

Zafar Ahmad Gondal for Respondent.

Date of hearing: 4th December, 1985.

Parties were married and in almost a year's time they separated to be followed by a divorce pronounced by the respondent. On 13-12-1980, Petitioner filed a suit for recovery of Rs.22,421 as the price of her dowry aricles living in the house of the respondent who contested the suit by denying that the said articles may be with him and alleged that they had been loaded away on a truck by her father to his own house. He also disputed the value put by the petitioner on her articles and the suit was set down to be tried on the following issues:-

(1) Whether the plaintiff is estopped from her own conduct from filing the suit O.P.D.

(2) Whether the suit has been filed with mala fide intention O.P.D.

(3) Whether the plaintiff is entitled to recover the articles of dowry as prayed O.P.P.

(4) Relief.

By its order, dated 18-1-1984 trial Court closed her case under Order XV I I , rule 3 of the C . P . C . to dismiss her suit for want of evidence. She preferred an appeal in the District Court and in para. 2 thereof it is averred that her witnesses had attended on a number of dates but their evidence was not recorded and that on 18-1-1984 her witness Muhammad Qayyum Khan was ill while the other witness Kh. Ghazanfar Hussain had gone to Faisalabad in connection with his business, therefore, she could not bring them. Her appeal was entrusted to Mr. Ala- ud-Din Arshad Nagi, learned Additional District Judge, who dismissed it with the mere conclusion that the suit had already been adjourned on 12 dates when, except on one or two occasions. the adjournment was made at her request. She has now come up to this Court on revision.

2. Learned counsel contends that witnesses of the plaintiff /petitioner had attended the trial Court on numerous occasions when they were returned without being examined and learned Judge in appeal below has been in error in assuming that responsibility for adjournments lay exclusively on her. Upon summoning and perusing the trial Courts' file I have gained an unavoidable impression that the trial Judge may himself have been responsible for adjourning the suit on flimsy grounds, without recording the evidence of her witnesses on at least five dates because there exist interim order whereby, in spite of noticing that her witnesses are in attendance and once, after mentioning even their names, he has put off the suit by simply writing "adjourned at request", without indicating either as to who had requested for it or what may be the reason therefore. Their absence on the relevant date may have occasioned from cause beyond her control in so far as it could well be that her witnesses attending the trial Court again and again to repeatedly return disappointed may, in the course of time, have become unavailable to her on account of routine exigencies and in such a situation this eventuality was not unexpected. There is no indication on the record that the trial Judge may have made any effort to ascertain the reason for their absence on that date. Explanation thereabout tendered by her in the memorandum of appeal below is quite natural and convincing. Provision made in Order XVII, Rule 3 of the C.P.C. is only permissive and is not mandatory so that thereby a discretion is conferred for resort to penal action according to the circumstances of the case. Whatever may have been the reasons for adjournments made in the past in spite of the presence of her witnesses, features of this case did require the trial Judge to have considered the desirability of exercising discretion to grant adjournment to the plaintiff on 18-1-1984. After granting due consideration thereto he may, of course, have declined to exercise the discretion for the reasons to be recorded but he could not have acted in oblivision thereof to proceed as if he was bound to close her case. Learned counsel argues that failure of the trial Judge to be conscious of the existence in him of a discretion in the matter renders his order unsustainable in law. He has relied on Saeed Ahmad v. Messrs Indo Enamel Works, Ltd. Lahore P L D 1954 Lah. 490 wherein a Full Bench of this Court has held:-

"When a Court possesses a discretion, it is its duty to consider whether or not to exercise the discretion."

He has also placed reliance on Dhunda v. The Punjab Province P L D 1960 Lah. 786 wherein it is held:-

"It is the right of a party that the Judge who exercise powers in his case should be conscious of the extent of those powers. If he is not conscious of all the powers that he has, then that is tantamount to a misconception of his powers and his order is liable to be set aside."

Since neither of the two Courts below have attended to the question as to whether or not discretion may have been exercised in favour of the) petitioner, therefore, the order closing her case under Order XVII Rule 3 of the C.f.C. cannot be sustained.

4. In result, impugned judgments and decrees are set aside as being illegal and the petitioner's suit is remanded to be tried in i accordance with law by a Judge other than Mr. Khalil Ahmad Anwar. Civil Revision is accordingly allowed. Respondent will bear the petitioner's costs thus far.

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