IN THE HIGH COURT OF SINDH
CIRCUIT COURT AT LARKANA
Civil Revision Application S-59 of 2016
Dr. Bhagwandas & Others
vs.
Mashooq Ali Jatoi & Others
For the Applicants: Dr. Bhagwandas
Applicant in person
For the Respondents No.1 to 3: Mr. Noushad Ali Taggar Advocate
Date of Hearing: 18-09-2018
Date of Announcement: 18-09-2018
O R D E R
Agha Faisal, J. The crux of this judgment is the determination of whether the interpretation and application of Order XVII Rule 3 CPC, undertaken by the Courts below, merited interference by this Court in the exercise of its revisional jurisdiction.
2. The present applicant had filed a suit before the Court of the learned II-Senior Civil Judge, Larkana, which was dismissed in exercise of Order XVII Rule 3 C.P.C, vide the judgment dated 15.03.2016 (“Trial Court Judgment”). The operative part of the Trial Court Judgment is reproduced herein below:
“Keeping in view my discussion on Issue Nos.1 to 4, the present first class suit stands dismissed under Order XVII Rule 3 C.P.C with no order as to costs. Let the decree be prepared within one week.”
3. The Trial Court Judgment was assailed in appeal before the Court of learned VI-Additional District Judge Larkana and vide judgment dated 24.08.2016 (“Impugned Judgment”), the learned appellate Court was pleased to uphold the Trial Court Judgment, hence the applicant preferred this civil revision application.
4. The question before this Court was whether any infirmity had been identified with respect to the Impugned Judgment (and / or the Trial Court Judgment) which would merit interference of this Court within the parameters prescribed under Section 115 C.P.C.
5. Dr. Bhagwandas, the applicant in person, submitted that the Trial Court Judgment has decided the lis pending there before in violation of the due process of law and in prima facie misapplication of the provisions of Order XVII Rule 3 C.P.C. It was further submitted that the orders prescribed in the Civil Procedure Code regulate the procedural aspect of a trial and substantive injustice could not be meted out under the garb of compliance of a procedural provision. It was thus contended that the Trial Court Judgment was in dissonance with the law and the Impugned Judgment suffered from the same infirmity as it failed to consider and remedy the erroneous application of law, manifest from the Trial Court Judgment.
6. Mr. Noshad Ali Taggar, learned counsel for the respondents, submitted that the Trial Court Judgment and the Impugned Judgment are in accordance with law and no interference is merited therewith. Per learned counsel, the issues were framed by the learned Trial Court on 17.06.2011 and the suit was dismissed under Order XVII Rule 3 C.P.C almost after 5 years later, on 15.03.2016. It was stated that this timeline itself demonstrated that the present applicant opted not to proceed with the trial expeditiously and hence the respondents could not have been kept under litigation perpetually. Learned counsel hence argued that the present proceedings merit dismissal forthwith.
7. This Court heard the applicant in person and the learned counsel for the respondents No.1 to 3 respectively at considerable length and has also perused the record available on file. Prior to deliberating upon the merits herein it may be appropriate to advert to the illuminating pronouncements of the superior Courts in regard hereof. In the case of Muhammad Aslam vs. Nazeer Ahmed reported as 2008 SCMR 942 (“Aslam”), it has been determined by the honorable Supreme Court as follows:
“It may be pointed out here that though under Order XVII, Rule 3, C.P.C. it has been provided that where sufficient cause is not shown for the grant of adjournment the Court may proceed to decide the suit forthwith but the words used in the provision in question "proceed to decide the suit forthwith" do not mean "to decide the suit forthwith" or "dismiss the suit forthwith". The said rule simply lays down that the Court may proceed with the suit notwithstanding either, party fails to produce evidence etc. meaning thereby that in case of default to do a specific act by any party to the suit, he next step required to be taken in the suit should be taken. Though the word "forthwith" means without any further adjournment yet, it cannot be equated with the words "at once pronounce judgment, as used in Order XV, rule 4, C.P.C. ' where, on issuance of summons for final disposal of the suit either party fails, without sufficient cause, to produce the evidence on which he relies".
(Underline added for emphasis.)
7. Since in the instant case it appears from the record that on 7-9-2006 the plaintiff himself was in attendance when the case was adjourned for the next day i.e. to 28-9-2006 for orders, otherwise recourse to Order XVII, rule 2 could have been made, therefore, the trial Court, despite non-production of witnesses by the plaintiff, ought to have asked the plaintiff to come in the witness-box instead of dismissing the suit forthwith. In this view we are fortified by the observations made in the case of Ghulam Rasool v. Rai Ghulam Mustafa and others 1993 SCMR 2026, wherein the petitioner had failed to lead evidence on different dates to which trial was successively postponed. He made statement before the Court that he did not want to produce evidence except his own affidavit which trial Court declined to receive on the ground that as the petitioner was present in person, he should appear in the witness-box. After rejecting his prayer, the trial Court closed his evidence and then dismissed the suit for want of evidence. It was held that since there was nothing on record to show that after rejection of his request with regard to his affidavit, the learned trial Court before closing his evidence allowed him to appear as his own witness, as it was a right of a party to make a statement in support of his case therefore, the Impugned Judgment was not sustainable. The case of Ali Muhammad v. Murad Bibi 1995 SCMR 773, is another opt example wherein the suit filed by the petitioner was fixed for recording of his evidence. Counsel for the petitioner made a request for adjournment on the said date, which was declined and petitioner's right to cross-examine was closed. The trial Court on the very day passed the judgment even without providing opportunity to the respondent to produce his evidence. The above judgment was assailed in appeal before the Additional District Judge, which was accepted. Impugned judgment and decree was set aside and the case was remanded to the trial Court for trial in accordance with law by allowing right of cross-examination to the petitioner and then to produce his evidence. The petitioner impugned the said order through F.A.O., which was dismissed in limine. Leave was sought against the said order, which was refused and it was observed by this Court that since the learned trial Judge had not only closed the right of respondent to cross-examine the petitioner's witnesses and passed the decree on the same day, without providing opportunity to the respondent to produce his evidence, therefore, the Impugned Judgment was not sustainable. In the case of Abdul Wahid v. Ghulam Mujaddad 1989 CLC 697, too, the tenant was given some adjournments for production of evidence. His evidence was ultimately closed and ejectment was ordered. It was held that since on the said date the tenant and his one witness was present, therefore, Rent Controller was bound to record the statement of tenant and testimony of his witness and then to decide the ejectment application on merits after recording his findings on the issues. The case was remanded to Rent Controller with direction to dispose of matter after giving an opportunity to tenant to produce whole of his evidence….”
8. The ratio of Aslam was followed by a learned Single Bench of this Court in its judgment dated 29.09.2017, in First Civil Appeal No.04 of 2013 titled Bhagwandas alias Dr. Bhagwandas and Another vs. Mashooque Ali Jatoi, wherein it was maintained as follows:
“Merely for the fact that in the adjournment application, copy of cause list was not annexed, the adjournment request could not have been refused. If production of cause list was that necessary, then at least a chance ought to have been given to the plaintiffs for producing the same. It is also noted that plaintiff No.1 was himself present before the court and, therefore, in such circumstances, the matter could not be termed and called as a case of default. In fact reasonable excuse was placed before the Court to adjourn the matter for the next date instead of passing the impugned order, whereas, the conduct of plaintiff on the fateful day cannot be called as deliberate avoidance to lead evidence.
Even otherwise, Order 17 Rule 3, C.P.C does not provide that when a matter is listed for recording of evidence by any of the parties, the same could ordinarily be dismissed in default. At the most is to close the side of the party who has failed to lead the evidence. In this matter when the plaintiff was himself present before the Court, he could have been asked for appearance in the witness box. Moreover, the Court could have proceeded in terms of Order 17 Rule 2, C.P.C. All this has not been done in this matter and the Court has gone to the extent of dismissing the suit under Order 17 Rule 3, C.P.C. It is settled proposition that the matters are to be decided on merits instead of technicalities and parties are to be allowed to lead evidence in support of their cases. The Hon’ble Supreme Court in the case of Muhammad Aslam (Supra) has dealt with an identical situation and has been pleased to hold that when a plaintiff fails to lead evidence on a given date, the Suit cannot be dismissed in terms of Order 17 Rule 3 forthwith and instead resort can be made to Order 17 Rule 2 CPC when the plaintiff is present before the Court. Same principle has been followed in the other cases relied upon on behalf of the Appellants.
(Underline added for emphasis.)
In view of hereinabove facts and circumstance of this case the Impugned Judgment dated 26.09.2013, passed in Suit No.01 of 2010 by IV-Additional District Judge, Larkana, is hereby set aside and the matter is remanded to the said Court for deciding the same on merits. Appeal stands allowed in the above terms.”
9. The honourable Peshawar High Court was seized of a similar issue and expounded in its judgment dated 25.04.2016, in CR No. 54-P of 2014 titled Mehmood Khalid Khan etc Vs. Muhammad Iqbal Khan etc, as follows:
“I find that the learned trial court has acted in a manner not warranted by law. Order XVII Rule 3 CPC does not at all provide that in case evidence is absent on a date then the suit is to be decided against the party by way of penalty. On the other hand Order XVII, Rule 3 CPC states that where the evidence is absent, then the Court is to proceed with the suit.
(Underline added for emphasis.)
It is settled principle of law that the law favour the decision of a ‘lis’ on merits without making the technicalities of law as hurdles in the way of doing substantial justice between the parties. No doubt, the petitioners failed to produce their evidence, despite the fact, that some chances were given to them but this Court thinks t hat proceeding under Order XVII Rule-3 C.P.C was not proper for such default when the delinquent could adequately be punished by imposition of cost particularly when prior to said date, the Presiding Officer was on leave on two dates and due to Note Reader, the evidence could not be summoned but even then the plaintiff No.1 recorded his statement on the date fixed so an opportunity should have been granted to the petitioners but the learned trial Court straightaway dismissed the suit vide impugned order without giving issue-wise findings, which is not permissible under law.
For what has been discussed above, the instant petition is allowed, the orders of both the learned Courts below are hereby set aside, the suit of petitioners/plaintiffs is restored and the case is sent back to the learned trial Court with the directions to record rest of evidence of plaintiffs without any adjournment and after completion of trial, decide the case on merit in accordance with law within three months from the date of receipt of case file.”
10. A Division bench of the honorable Peshawar High Court deliberated upon the interpretation and application of Order XVII Rule 3 CPC in the judgment rendered in the case titled Govt. of NWFP vs. Messrs Tahir Shoaib – Rashid Shoaib reported as 1998 CLC 1680 and concluded as follows:
“It is evident from the impugned judgment/decree that the trial Court without considering the material available on the record comprising of the pleadings of the parties and evidence of the plaintiff, straightaway decided the suit. It may be noted that on the preceding date i.e. 2‑7‑1991 the hearing was adjourned at the request of the plaintiff for his evidence. The order‑sheet of 9‑9‑1991 on which date ex parte decree was passed is silent about the fact whether plaintiff had produced his evidence on the adjournment date as the date was fixed for plaintiff's evidence. Rule 3 of Order 17, C.P.C. is not mandatory in nature, and where there is no sufficient material on the record, the Court should have adjourned the case to enable the parties to tender their evidence and then to have decided the case on merits. The Court should not decide the case summarily as it has to pass a decree which must conclusively determine the rights of the parties. In the instant case though the statement of the plaintiff was on the record yet the Court without considering it proceeded to pass an ex parte decree summarily and that too under the wrong provision of law which is patently illegal. It is now well‑settled law that the Court while proceeding under Order 17, Rule 3, C.P.C. should record its finding in the case on merits after considering the entire material on the record. In case of Amanullah Khan. v. Mst. Akhtar Begun (1993 SCMR 504), the august Supreme Court of Pakistan while examining Order 17, Rule 3, C.P.C. observed as under:
"On the legal plane it appears that Order 17, Rule 3, C.P.C. contemplates that when any party fails to produce evidence, the Court may notwithstanding such default, proceed to 'decide' the suit forthwith. According to dictionary words 'to decide' mean "settle (question, issue, dispute) by giving victory to one side; give judgment (between, for, in favour of, against), bring come to a resolution". 'Decision' means 'settlement, conclusion, formal judgment, making up one's mind'. Word 'decision' came up for examination in the case of Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 and it was held that 'decision' means judicial determination in accordance with evidence before the Court. Coming back to Order XVII, Rule 3, C.P.C. the requirement of the law is that the Court has to decide the suit which means that material and evidence brought on the record is to be considered in order to decide the suit. In the instant case evidence of the plaintiff was recorded and from issues in several burden was put on the plaintiffs. Side of the defendants was closed as they failed to bring their witnesses on the date of hearing. In the circumstances it was mandatory for the Court to have examined the evidence brought on the record. It was not proper to have decreed the suit straightaway without examination of evidence brought on the record."
In view of the dictum laid down in the above‑cited case, it is apparent that the trial Court in passing the impugned decree acted illegally and without lawful authority. Consequently, this Regular First Appeal is accepted, the impugned judgment/decree is set aside and the case is remanded back to the trial Court to allow the parties to produce their evidence….”
11. The dismissal of the applicant’s suit, vide the Trial Court Judgment, was predicated on the basis that no evidence had been put forth by the present applicant. However, the case diary of the proceedings before the learned Trial Court suggests otherwise. The diary sheet of the Trial Court proceedings records the following order on 08.12.2010:
“08.12.2010. Case called. Plaintiff 1 to 4 called present their advocate also present. Defendant No.1 Present. Defendant No.2 also present. Defendant No.3 absent, their advocate called absent. His Jr. Advocate is present. The defendants are already debarred for filing of written statement & objections. Today matter is fixed for affidavit in evidence for exparte proof. The advocate of plaintiff submitted the affidavit evidence of Dr. Bhagwandas as Ex.11, he produced the original certificate of Pakistan Pediatric Association Punjab as Ex.11-A. He produced the VIII National Pediatric Certificate as Ex.11-B, he produced the 18th Annual Congress Certificate as Ex.11-C, he produced the original certificate of Pakistan Pediatric Association as Ex.11-D, he produced the Original Certificate XII biennial Conference as Ex.11-E, he produced the original certificate XVI International Biennial Conference as Ex.11-F, he produced the original certificate XIIIth Conference as Ex.11-G, he produced the original certificate of Anti Narcotics as Ex.11-H, he produced the original certificate of Pakistan Society as Ex.11-I, he produced the original certificate from office of CMC Larkana as Ex. I1-J, he produced the original certificate of Pakistan Pediatric Association at Ex.11-K, he produced the original certificate of Health Department as Ex.11-L, he produced VII Biennial Conference as Ex.11-M, he produced the interim FCFMG Certificate as Ex.11-N, he produced the original certificate of Medical Registration as Ex.11-O, he produced the original certificate as Ex.11-F, he produced certificate of Pakistan Medical Association as Ex.11-Q, he produced P.S copy of certificate of participation as Ex.11-R, he produced the true copy of judgment dated 17.04.2009 passed by Court of II-ADJ Larkana as Ex.11-S, he produced the true copy of Judgment passed by II-ADJ Larkana as Ex.11-T. The advocate for plaintiff submitted the affidavit in evidence of witness Chetal Lal as Ex.12. The advocate for plaintiff submitted the affidavit in evidence of witness Zulfiqar Ali as Ex.13. The advocate for plaintiff submitted affidavit in evidence of witness Mujeeb Rehman as Ex.14. The advocate of plaintiff submitted the affidavit in evidence of witness Amjad as Ex.15. The advocate for plaintiff submitted the affidavit in evidence of Witness Ahmed Ali as Ex.16. At this stage advocate for plaintiff submitted the statement for close the side as Ex.17. ”
12. In view of the foregoing it is apparent that the applicant (plaintiff before the trial court) had in fact substantiated his claim by means of documentary evidence, which was available before the Trial Court. It is also observed from the diary sheet, vide order dated 20.12.2010, that on the very next date the Trial Court had been pleased to accept written final arguments from the present applicant and had reserved the matter for orders. The relevant portion of the diary of the said date is reproduced herein below:
“20-12-2010. Case called. Plaintiff is present his advocate called absent, his clerk is present. Defendants No.1 and 2 present. Defendant No.3 absent, their advocate is present. The defendants are already debarred for filing written statement and objections. The advocate of defendants submitted the application U/O IX Rule 7 C.P.C. The P.S copy delivered for the advocate for plaintiff. Put off to 11.01.2011 for objections on application IX Rule 7 C.P.C, the advocate for plaintiff submitted the written & final arguments. Order on it. File.”
13. The record of the Trial Court reflects that subsequent thereto on 11.01.2011, the defendants who had been previously debarred, filed a restoration application (which was subsequently allowed on 09.05.2011). Thereafter the proceedings before the Trial Court proceeded in the manner delineated in the subsequent diary sheets, however, it was apparent that documentary evidence in support of the present applicants’ claim and written final arguments remained a constituent of the record before the learned Trial Court.
14. This Court is bound by the pronouncements of the honourable Supreme Court and in view of the interpretation of Order VII Rule 3 C.P.C articulated by Aslam the dismissal of the suit in the present facts and circumstances by the learned Trial Court, under Order VII Rule 3 C.P.C, was otherwise than in accordance with the law. It is observed with utmost respect that the learned Appellate Court and the learned Trial Court did not consider the underlying facts and overriding interpretation of the law while rendering the Impugned Judgment and the Trial Court Judgment, hence have exercised their jurisdiction with manifest material irregularity.
15. In view of the reasoning and rationale stipulated herein above the present civil revision application is allowed and the Impugned Judgment and decree dated 24.08.2016 and 27.08.2016 passed by the learned VI-Additional District Judge, Larkana and Trial Court Judgment and decree dated 15.03.2016 are hereby set-aside. The matter is remanded back to the Trial Court for adjudication on merit.
16. The office is directed to convey a copy of this order directly to the learned Appellate Court and the learned Trial Court for reference and record.
Judge
Abdul Salam/P.A