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Civil Appeal No. 8 of 1962, decided on 8th October, 1962.

O. XVI, rr. 10(3) and 1‑Witnesses summoned through Court failing to attend Court on adjourned hearing‑Court not bound to issue warrant against such witnesses unless party so desires.

O. XVI, r. 10(3) & O. VII, r. 3‑Witnesses summoned through Court failing to attend Court on adjourned hearing‑Court ordering party to pay process- fee for warrants under O. XVI, r. 10(3) but failing to fix date for payment of process‑fee‑Party failing to deposit process fee by adjourned date‑Court, acting under O. XVII, r. 3 closing evidence and dismissing suit with costs for default of party‑Exercise of discretion by Court under O. XVII, r. 3, held, not judicial‑Civil Procedure Code (V of 1908), O. XLVIII, r. 1(2).

O. XVII, r. 3‑Applica tion‑Rule permissive and not mandatory.

Sardar Muhammad Yasin Khan for Appellants.

B. A. Farooqi for Respondents.

Jamad Ali Khan appellant had brought a suit for pre‑emption in the Court of the Sub‑Judge, Muzaffarabad, against Mohammad Alam, vendee, and others in which issues had been framed and the plaintiff ordered to produce evidence. The witnesses of the plaintiff, who had been summoned through Court, were present in the trial Court on 29‑10‑1960 but the learned Sub‑Judge was out of the headquarters on duty. The case was accordingly adjourned to 1‑12‑60. On the adjourned date i.e., 1‑12‑60, the witnesses failed to attend the Court. It was ordered that the plaintiff shall pay the process‑fee for warrants and the witnesses shall be sum moned by issuing warrants for 7‑2‑61. On 7‑2‑61, the Mukhtar of the plaintiff and Mohammad Alam, vendee‑defendant, were present. The witnesses were not present. It was found that warrants could not issue since the plaintiff had not deposited the process‑fee for the same. The learned Sub‑Judge, acting under Order XVII, rule 3 closed the evidence of the plaintiff and dis missed the plaintiff's suit with costs for want of proof. The plaintiff then went up in appeal before the District Judge against the order of the Sub‑Judge dated 7‑2‑61. The learned District Judge by his judgment dated the 23rd of April 1962, dismissed the appeal with costs. The learned District Judge held that the Court below was right in using its discretion under Order XVII, rule 3, C. P. C. in proceeding to decide the case forthwith. The plaintiff has now come up in second appeal before this Court.

It has been argued by the learned counsel for the plaintiff appellant that the learned trial Court had made an illegal use of its discretion in refusing to adjourn the case on 7‑2‑61 and in pro ceeding to dismiss the plaintiff's suit under Order XVII, rule 3. On the other side it has been argued by the learned counsel for the defendant‑respondent that the learned Sub‑Judge had made a proper use of its discretion in dismissing the plaintiff's suit. Order XVII, rule 3 is reproduced below :‑

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

It has been argued by the learned counsel for the appellant that Order XVII, rule 3, C. P. C. should not be brought into play unless time has been granted to a party at his request and that it should not be applied where the Court has granted time in the ordinary routine. His contention is that time had been granted by the trial Court on 1‑12‑60 not at the request of the plaintiff but in the ordinary routine. I do not agree with the learned counsel in his contention. When witnesses fail to attend the Court after accepting service or refuse to accept service or having attended the Court fail to attend the Court on an adjourned hearing when so bound down, the trial Court is not bound to issue warrants against such witnesses unless the party, whose witnesses had made default, so desires. On such default being made the party may give up such witnesses or may elect to produce them at the adjourned hearing on its own responsibility. The Court is in no way bound to compel their attendance by issuing warrants. The Court would issue warrants only if the party desires the assistance of the Court in that respect. In the circumstances of the present case it shall be said that time was granted to the plaintiff at his own request for compelling the attendance of his witnesses conditional on the payment of the process‑fee for the warrants.

The Rule (rule 3, Order XVII) is permissive and not manda tory as is shown by the words "the Court may" proceed to decide the suit forthwith. The stringent provisions 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 are no sufficient materials on record to give a proper decision, the Court should grant a further adjournment in the case. In the present case before me no evidence had yet been recorded when the order dismissing the suit under Order XVII, rule 3 was passed. There was no material before the Court to decide the suit forthwith on merits. I should not be understood to mean that in no case should Order XVII, rule 3 be brought into play where no evidence has been brought on the record. If a party's conduct is such that he contumaciously fails to abide by the instructions of the Court or in spite of repeated adjournments fails to produce his evidence or to deposit the process‑fee then of course the trial Court has no alternative but to dismiss the suit for want of proof, In the present case, the plaintiff had deposited the expenses of the witnesses and the witnesses had actually attended the Court but unfortunately the Presiding Officer was out of the headquarters. The witnesses failed to attend on the adjourned date of hearing and the plaintiff was ordered to deposit process fee for issuing warrants of the witnesses. Only one default had e been made by the plaintiff and there was no evidence on record to enable the Court to decide the case forthwith. The other party could have been very well compensated by the award of costs. In the circumstances of the case an order for adjourn ment on payment of costs would have been a proper use of the discretion vested in the Court rather than pass an order under Order XVII, rule 3. Moreover, the attention of the learned trial Judge is drawn towards Order XLVIII, rule 1 sub rule (2). Order XLVIII, rule 1 is reproduced below :‑

Sub‑rule (1) : "Every process issued under this Code shall be served at the expense of the party on whose behalf it is issued unless the Court otherwise, directs."

Sub‑rule (2) : "The court‑fee chargeable for such service shall be paid within a time to be fixed before the process issued."

The trial Court should have fixed a date for the payment of the process‑fee. It had not fixed any date for the payment of the process‑fee. Even on this ground it shall be said that the trial Court had not judicially exercised its discretion in refusing the grant of adjournment on 7‑2‑61.

I accept the appeal and remand the case back to the trial Court for re‑trial. A date shall be fixed for the payment of the process‑fee for issuing bailable warrants of the plaintiff's witnesses and then another date fixed for the attendance of the witnesses. The order of remand is, however, conditional on the payment of Rs. 20 as costs of adjournment by the plaintiff to the vendee -defendant, which shall be paid in the Court of the Sub‑Judge, Muzaffarabad; on 15‑10‑1962.

Parties have been directed to attend the Court of the Sub -Judge, Muzaffarabad, on 15‑10‑1962.

K. B. A./A. H. Appeal accepted

Case remanded.

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