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Letters Patent Appeal No. 25 of 1961, decided on 19th October 1962.

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---Certificate of fitness of appeal‑Period of 15 days to be counted from date of announcement and not signing of judgment.

O. XVI, r. 20‑Party "failing" but not "refusing" to give evidence on date fixed for pur pose‑Provision of rule not applicable.

O. XVII, r. 3‑Rule permissive and not mandatory ‑ Stringent provision of rule not to be applied unless case does not admit application of any other provision of Code‑Single default of plaintiff to produce his evidence‑Dismissal of suit in exercise of powers vested under O. XVII, r. 3, not justified.

A. K. Ansari for Appellant.

Ch. Muhammad Hussain for Respondents.

.‑This is an appeal against the appellate judgment of the learned Single Judge of this Court anted 18‑7‑61 by which accepting defendant's appeal the judgment and decree of the District Judge, Mirpur dated 13‑3‑61 was set aside. Alif Din plaintiff brought a declaratory suit against the defendants Fazal Din and others in the Court of Sub‑Judge, Mirpur for declaration that he had the right of passage to the water tank over the fields of the defendants and for an injunction restrain ing the defendants from interference with his right of passage. The suit was instituted on 25‑6‑60 and adjourned to 10‑8‑60 for written statements of the defendants. On 10‑8‑60 as also on two subsequent dates to which the suit had been adjourned the defendants failed to comply with the orders of the Court. On 23‑10‑60 in view of the failure of the defendants to file their written statement the Court ordered that they would be give n no further opportunity of filing the written statement and ordered the plaintiff to produce his evidence on 24‑11‑60. On 24‑11‑60 the parties were present. The plaintiff failed to produce evidence on this date. The learned Sub‑Judge dismissed the plaintiff's suit for want of proof. The plaintiff then went up in appeal before the District Judge Mirpur who by his judgment and decree dated 13‑3‑61 set aside the judgment and decree of the Sub‑Judge and remanded the case back to the trial Judge for a fresh trial from the very beginning according to law holding that the facts of the case do not warrant the application of the stringent provision of Order XVII, rule 3, C. P. C. The defendants then went up in appeal against the judgment and decree of the District Judge before the High Court and the learned Single Judge of this Court by his judgment and decree dated 12‑7‑61 but which was announced on 18‑7‑61 set aside the judgment and decree of the District Judge and restored the judgment and decree of the Sub -Judge, Mirpur. The plaintiff has now come up in appeal against the judgment and decree of the learned Single Judge of this Court.

Ch. Muhammad Hussain, learned counsel for the defendants -respondents has raised a preliminary objection that this appeal is time‑barred. His contention is that the plaintiff‑appellant should have applied for a certificate enabling him to file the appeal within 15 days of the date of judgment and decree of the learned Single Judge which was not done, therefore, in spite of the grant of the certificate by the learned Single Judge the appeal is time‑barred. The learned Single Judge signed the judgment at Muzaffarabad on 12‑7‑61 and was announced by the learned Chief Justice at Mirpur on 18‑7‑1961. 15 days time for applying for a certificate of fitness of appeal before the Division Bench would count not from the date of signing of the judgment but from the date of the announce ment of the judgment. The application for obtaining the fitness certificate is clearly within 15 days from the date of the announce ment of the judgment, therefore, the appeal is held to be within time. The preliminary objection is over‑ruled.

The learned Single Judge has remarked that the learned District Judge was wrong in holding that the order of the learned Sub‑Judge had been made under Order XVII, rule 3, C. P. C. The learned Single Judge has written that for an order to be passed under Order XVII, rule 3, two conditions must co‑exist :‑

(i) the application for adjournment must be at the instance of the party to suit applying for the production of evidence ; and

(ii) there must be some material on which the Court can proceed to judgment.

The learned Single Judge held that in the' present case none of these conditions existed at the time the Sub‑Judge passed his order dated 24‑11‑60 and that the learned Sub‑Judge had also not mentioned in his order that he had passed the order under Order XVII, rule 3, C. P. C., therefore, in the opinion of the Single Judge, there was no justification for the District Judge to have treated the order of the Subordinate Judge., as one under Order XVII, rule 3. The learned Single Judge has referred to Order XVI, rule 1, C. P. C. which enables the parties to obtain on application to the Court at any time after the institution of the suit, summonses to persons whose attendance is required either to give evidence or to produce document. The learned Single Judge seems to be of the view that the order dismissing the suit was the proper order and probably was passed under the provi sion of Order XVI though the learned Single Judge has not mentioned under what rule of the said Order the order of the Sub‑Judge falls.

It has been argued by the learned counsel for the plaintiff -appellant that it is, no doubt, correct that the learned Sub‑Judge has not mentioned the rule and Order under which he had made the order of dismissing the plaintiff's suit, yet the order shall be said to be one made under Order XVII, rule 3, since there exists no other provision in the C. P. C. under which the suit could have been dismissed, in the circumstances in which it was done. The learned counsel for the defendants‑respondents has pointed out that the order of the learned Sub‑Judge would fall under Order XVI, rule 20, C. P. C. Order XVI, rule 20, is reproduced below:

"Where any party to a suit present in the Court refuses, without lawful excuse, when required by the Court, to give evidence or to produce any document then and there in his possession, or power, the Court may pronounce the judgment against him or make such order in relations to the suit as it thinks fit."

We are unable to agree with the learned counsel for the defendants‑respondents. Order XVI, rule 20, says that if any party to the suit present in the Court refuses without lawful excuse when required by the Court to give evidence . . . , the Court may pro nounce the judgment against him or make such order in relation to the suit as it thinks fit.

What we understand by rule 20 is that when the Court desires to examine a party whether as a party or as a witness and such party without lawful excuse refuses to give evidence, the Court may pronounce the judgment against him. The words used are refuses to give evidence' and not refuses to produce evidence. In the absence of tote application pf Order XVI, rule 20 we shall have to say that the order passed by the learned Sub‑Judge was one made under Order XVII, rule 3, though necessary conditions for the application of Order XVII, rule 3, do not exist and the application of this provision was not justified.

The rule of law enacted under Order XVII, rule 3, C. P. C. is permissive and not mandatory as is shown by words "the Court may proceed to decide the suit forthwith." The stringent provision thereof should not be applied unless the Code does not admit of the application of any other provision of the Code. Where, for instance, there are no sufficient materials on record to give a proper decision the Court should grant a further adjournment of the case. Order XVII, rule 1 provides ; (a) that the Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them and may from time to time adjourn the hearing of the suit (b) in every such case the Court shall fix a day for the further hearing of the suit and may make a such order as it thinks fit with respect to the costs occasioned by the adjournment. The learned counsel for the appellant has cited A I R 1943 Sind 94 which lays down that ordinarily the powers under rule 3 should not be exercised unless the case of both sides is on record and arguments are heard and that where the defendant is trifling with the Court and is contemptuous and purposely absents himself, the Court is justified in applying rule 3. We have also an unreported judgment by a Single Bench of our own High Court‑Civil Appeal No. 8 of 1962 Jamband Ali Khan v. Mohd Alam and others decided on 8‑10‑1962. It was held in this case that the rule (rule 3, Order XVII) is permissive and not mandatory and the stringent provision thereof should not be applied unless the facts do not admit of the application of any other provision of the Code. Where, for instance, there is no sufficient material on record to give a proper decision, the Court should grant a further adjournment in the case. In this unreported case, no evidence had yet been recorded when the order dismissing the suit under Order XVII, rule 3 was passed and there was no material before the Court to decide the suit forthwith on merits. The learned Single Judge deciding this case wrote that he should not be under stood to mean that in no case should Order XVII, rule 3, come into play where no evidence had been brought on the record. If a party's conduct was such that he contumaciously failed to comply with the instructions of the Court or in spite of repeated adjournments failed to produce his evidence or to deposit the process fee, then, of course, the trial Court had no alternative but to dismiss the suit for want of proof. In the present case before us also no evidence had yet been recorded and it was not proper exercise of the discretion vested in the Court to apply the provision of Order XVII, rule 3. The defendants for their failure to file the written statement had been granted adjournment on 10‑8‑60 on payment of Rs. 5 costs and the case adjourned to 6‑10‑60. But on 6‑10‑60 also they had failed to file the written statement, the case was again adjourned to 23‑10‑60 when on their repeated failure an order was passed that they shall be given no further adjournment for filing their written statement. The plaintiff in this case had committed only one default in producing his evidence. 24‑11‑60 was the first date fixed for the production of the plaintiff's evidence. We are of the opinion that for one default of the plaintiff to produce his evidence the exercise of the powers vested in the Court under Order XVII rule 3, was not judicial exercise of its powers. It was a fit case for the application of Order XVII, rule 1, and an adjournment should have been granted to the plaintiff on payment of costs. The learned trial Court had granted an adjournment to the defendants on 10‑8‑60 on payment of Rs. 5 costs. We think the plaintiff too should have been granted an adjournment‑ on payment of Rs. 5 costs. We therefore accept the appeal and setting aside the judgment and decree of the learned Single Judge dated 12/18‑7‑1961, restore the judgment and decree of the learned District Judge, Mirpur dated 13‑3‑61. The record shall now be sent to the learned Sub‑Judge, Mirpur for compliance of the judgment and decree of the learned District Judge. The parties have been directed to appear before the Sub‑Judge, Mirpur on 16‑11‑1962. Costs shall follow the events.

K. B. A. Appeal accepted.

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