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Regular First Appeal No. 5,, of 1983, decided on 11th March, 1986

‑‑‑S. 96‑‑First appeal, filing of‑‑Validity‑‑Memorandum of appeal file in Court within statutory period was duly certified by Reader to Registra and countersigned by Additional Registrar‑‑Fact of non‑payment c court‑fee stamp found subsequently‑‑Non‑payment of such court‑fee stamp, being neither deliberate and mala fide, nor due to negligence appellant preliminary objection for dismissal of appeal was disallowed circumstances.

‑‑‑‑0. XVII, R. 3‑‑Disposal of suit‑‑Requirements‑‑To attract pens provision of O. XVII, R. 3 of Civil Procedure Code it was, held, t be proved on record, in unambiguous terms, that adjournment was given to party at its instance‑‑Penal provisions, thereof, being no mandatory in nature and substance, it was for Court to see in give facts and circumstances whether resort was to be made to such provision or to adjourn case by imposing costs on defaulting party.

Maulvi Abdul Aziz Khan v. Mst. Shah Jehan Begum and other P L D 1971 S C 434 and Syed Tasleem Shah v. Sajawal Khan 198 SCMR 585 rel.

‑‑‑S. 96 & 0. XVII, R. 3‑‑Appellate jurisdiction exercise of‑‑When adjournment of case was not at instance of party, penal provisions o O.XVII, R.3; Civil Procedure Code, held, could not be invoked‑‑Exercise of penal provisions by Trial Court being not justified, order of dismissed of suit for non‑production of evidence was set aside by High Court it exercise of appellate jurisdiction‑‑Case was remanded to Trial Court for affording fresh opportunity to both parties to lead their evidence and to decide same in accordance with law.

Ghulam Nasir Khan for Appellant.

Azizur Rehman Khan for Respondents

Date of hearing: 11th March, 1986.

Allied Bank of Pakistan Limited through its Manager, D.I. Khan Branch has filed this First Appeal against the judgment and decree of the Senior Civil Judge, D.I. Khan, dated 23‑5‑1963 whereby its suit for the recovery of Rs.56,301 with interest thereon filed against the respondents herein was dismissed after invoke in 2. The instant suit for recovery of the amount was instituted in the Court of Senior Civil Judge, D.I. Khan on 16‑3‑1978 which was resisted by the defendants in their written statement on several legal and factual pleas. Thereafter, the case was adjourned from time to time for hearing arguments of the parties on miscellaneous applications. Ultimately it was on 12‑9‑1980 i.e. after 21 years that the list of witnesses was filed and the witnesses were summoned for 28‑11‑1982. On 28 11‑1982 the case was adjourned to 29‑1‑1983 for the reason that record clerk of the Bank was on leave on that date for recording evidence of the plaintiff. On the date so fixed, the Presiding Officer of the Court had handed over the charge hence evidence could not be recorded and the case was to be adjourned for further proceedings, as earlier ordered, to 24‑3‑1983 by the Reader of the Court. This time, the learned counsel for the plaintiff in presence of the learned counsel for defendant informed the Court that due to Bank audit, the Manager was unable to bring the relevant record with him. The learned Senior Civil Judge adjourned the case with the observation that it would be last chance for recording evidence of the plaintiff. The learned trial Judge vide the impugned order dated 23‑5‑1983 dismissed the suit after invoking the provision of Order XVII, Rule 3, C.P.C.

3. Aggrieved by the judgment and decree of the learned Senior Civil Judge, plaintiff Bank has come in an appeal to this Court challenging the legality of the judgment and order for the reason given in the memorandum of appeal.

4. Before hearing of the arguments, learned counsel appearing for respondent raised a preliminary objection to the competency and validity of the appeal for the appellant having failed to deposit the printing charges and court‑fee on the Wakalatnama, copy of the judgment and decree sheet in violated Rule 8 of Chapter II Volume 5 of the High Court Rules and Orders. In support of his objection, the learned counsel relied on Ghulam Sarwar Khan v Government of N. W.F.P. and another reported in P L D 1955 Pesh.81.

5. The learned counsel for the respondents, however, argued that an application for deposit of the printing cha ores was made on 24‑11‑1984 and the appellant was allowed by the Court to make the required deposit which was accordingly made on 21‑2‑1985. The appellant's failure to have affixed court‑fee stamp on the Wakalatnama, copy of the judgment and decree the learned counsel argued, was by in advertance and asked for permission of the Court to affix the same.

6. We have given anxious thought to the arguments addressed by the learned counsel for the parties but have not been persuaded tot take strict view of the matter by dismissing the appeal on the ground referred to above. The appeal has otherwise been filed within time and a court‑fee of Rs.1,716 is affixed on the memorandum of appeal. The judgment relied upon by the learned counsel for the respondent, namely, Ghulam Sarwar v. Government of N.‑W.F.P. reported in P L D 1955 Pesh. 81 is distinguishable on the facts of the present case as in the A reported judgment neither the requisite court‑fee on the memorandum of appeal was paid nor the copies of the decree sheets were stamped with the required court‑fee and this was deliberately avoided for it was the last date of limitation ‑ for filing of the appeal. In the instant case the printing charges were deposited in Court in compliance with the order of this Court while the stamp of Rs.5 leviable on the copy of' the certified copy of the decree sheet and certified copy of the judgment and power of attorney does not appear to have been affixed.

7. As earlier pointed out, the memorandum of appeal was filed in Court within the statutory period and was thereafter duly certified by the Reader to the Registrar and countersigned by the Additional Registrar that the memorandum of appeal and copies attached thereto bear the court‑fee of the proper amount. We are, therefore, of the view that either the court‑fee stamp were already affixed on the documents when the above‑mentioned report was made or the possibility is that the report was based on a mistake of fact. In these circumstances, we are not inclined to hold that the non‑payment of court‑fee stamp of Rs.5 was deliberate and mala fide or due to the negligence of the appellant. We, therefore, disallow the preliminary objection.

8. It was pointed out by the learned counsel for the appellant that the judgment and order is illegal and suffers from material irregularity. While elaborating his contention it was pointed out that on 24‑3 1983 the date fixed for recording of plaintiff's evidence the case was not adjourned at the instance of the plaintiff rather adjournment was made in routine when it was brought to the notice of the Court that the Manager of the Bank is available in Court but the record of the Bank could not be produced as it was subject to audit on that date. The fact that the learned trial Judge has in the end of his order remarked that it would be the last chance did not mention that the adjournment was given at the instance of the plaintiff. It was further contended that Manager of the plaintiff Bank had appeared in Court but when the case was called for hearing at that time he had left the Court premises to contact his counsel as he had been informed that the learned counsel had been appointed as an Assistant Advocate‑General and that he would not be able to take private cases. However, on return he was informed that the suit had been dismissed. In support of his contention that the provision of Order XVII, Rule 3 was not attracted to this case in the given circumstance reliance was placed on Syed Tasleem Ahmad Shah v. Sajawal Khan etc. reported in 1985 S C M R 585.

9. In controverting the contention the learned counsel for the respondent argued that on 24‑3‑1983 plaintiff had brought to the notice of the Court‑that the Bank record is not available on which the learned trial Judge based his order by adjourning the case. No doubt there is no specific mention in the order that the adjournment was made at the instance of the plaintiff, however, the fact that the Court has mentioned that it would be the last opportunity to the plaintiff for producing the evidence clearly indicated that the adjournment was made at the request of the plaintiff.

10. In order to appreciate the arguments of the learned counsel for the parties it would be proper to reproduce the relevant provision which is as follows:‑

"Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. "

Q.A the plain reading of the provision of law reproduced above in the light of the contention raised by the learned counsel for the appellant we find some force in it. Admittedly the case was adjourned from 29‑1 1983 to 24‑3‑1984 for further proceedings as in the meantime the Presiding Officer was transferred and evidence could not be recorded. When the case came up for hearing 24‑3‑1984 and it was brought to the notice of the Court that the Manager was unable to bring the relevant record as it was subject to audit on that date the Court adjourned the case and no objection was raised by the learned counsel for the respondent whose presence is recorded therein. The adjournment on the face of it appears to have been made in routine and the mere fact that in the end the learned trial Judge has made an observation that it will be a last chance for recording of plaintiff's evidence will B not change the character of the order. To attract the penal provision of Order XVII, Rule 3, C.P.C. it must be proved on the record in unambiguous term that the adjournment was given to the party at his instance. This was the view expressed by their Lordships in a judgment Maulvi Abdul Aziz Khan v. Mst. Shah Jehan Begum and others reported in PLD 1971 SC 434 which was subsequently followed in a judgment of the same Court Syed Tasleem Shah v. Sajawal Khan etc. reported in 1985 S C M ft 585. In the latter judgment it was held by their Lordships that: ‑

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

Furthermore, the provision of Order XVII, Rule 3 is not mandatory in nature and substance. It is, therefore, for the Court to see in the given facts an‑' circumstances of a case before it whether resort is to be made to the penal provision or to adjourn the case by imposing costs on the defaulting party. The present suit is for the recovery of C the amount advanced by the plaintiff Bank to the defendant which was instituted on 12‑3‑1978 but unfortunately for the first time it reached the stage of recording evidence of the plaintiff on 28‑11‑1982 and throughout this period no adjournment was made at the request and fault of the‑plaintiff. The adjournment made on 24‑3‑1983 for reason given therein without objection raised by the learned counsel for the defendant cannot, therefore, be said to be an adjournment at the instance of the plaintiff.

11. For the reasons stated above and relying on the judgment of the Supreme Court of Pakistan cited above, we would allow this appeal, set aside the judgment and decree of the learned Senior Civil Judge and remand the case to him for affording opportunity to both the parties to lead their evidence and thereafter to decide the case on merits. We, however, direct the plaintiff to pay Rs.1,000 as costs to the defendant. The costs of this appeal is to follow the events.

A . A Case remanded

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