This is the defendant's first appeal directed against the order dated 26-2-1978 passed by the District Judge, Cambellpur, allowing the plaintiffs' appeal from dismissal of their suit by the Senior Civil Judge, Campbellpur.
2. In the suit which was for possession by pre-emption, a number of issues were framed on 29-4- 1974 and the matter was listed for 19-10-1974 for evidence of the plaintiffs but summonses could not issue because the process-fee was not paid in time and as such the matter was adjourned to 3-1-1975. On the latter date, only the Patwari was present but he could not be examined because of the illness of the plaintiffs' counsel. He was examined on the next date i.e. 29-4-1975. There being no other witness present -then the matter, was adjourned to 15-7-1975 but as the Presiding Officer was on leave on that date, it was again adjourned to 30-7-1975 for evidence of the plaintiffs. On this subsequent date also, no witness appeared and the matter was adjourned, at the plaintiffs' request to 11-11-1975. Oil this date, the plaintiffs' counsel made a statement that no witness was present and that none was summoned on account of some misunderstanding. He prayed for further adjournment which was disallowed and on the basis of evidence already on record, the trial Court held the material issue] i.e. Issues Nos. 3, 4 and 5 against the plaintiffs. The trial Court also observed that the evidence of the Patwari was silent in respect of those material issues. In the light of the finding, the plaintiffs' suit was dismissed the same day.
3. In their first appeal before the District Judge, the plaintiffs' counsel contended that on 11-11-1975, Abdul Hamid Soharwardi, a witness, and the plaintiffs were present but that they were not examined. The learned District Judge, thereupon, and without checking the veracity of that contention from the record, observed that "the learned Senior Civil Judge should have examined the evidence available on the date he dismissed the suit for non-summoning of the other witnesses." He, therefore, allowed the appeal and restored the suit on the plaintiffs' depositing Rs.
100 as costs.
4. Under sub-rule (3) (Lahore Amendment of rule 1 of Order XVII, where sufficient cause is not shown for the grant of an adjournment under sub-rule (1), the Court shall proceed with the suit forthwith.
Under rule 3 of the same Order, "Where any party to a suit to whom time has 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 default, proceed to decide the suit forthwith." The judgment of the trial Court does no show as to which of the two provisions had been followed, but counsel on both sides took it to have been under rule 3. The requirements for proceeding "to decide forthwith" under that rule are that
(1) the hearing had been adjourned at the request of a party to the suit and not by the Court of its own motion;
(2) the adjournment was granted to enable the party to produce his evidence;
(3) the party defaults in producing evidence for which it had sought and had been allowed the adjournment; and
(4) the adjournment had been made at the request of the party which subsequently makes the default.
5. The provision being penal in nature, must be construed strictly and should not be resorted to unless the case fell fully within its mischief. Even where all the requirements were met, the Court was not bound to proceed under the rule, for, the provision is not mandatory but only permissive, though the discretion has to be used judicially and not arbitrarily. In the case in hand, it is to be seen that the issues were framed as early as 29-4-1974 and the matter was adjourned from time to time up to 11-11-1971 for the production of the plaintiffs' evidence. Only once, i.e. On 15-7-1975, the hearing had to be adjourned on account of the absence on leave of the Presiding Officer. Even on this date, as noted in the relevant proceeding-sheet, no witness had appeared. Perhaps none had even been summoned, for, the words are "". When the case came up next on 30-7-1975, the following order was passed This order shows that the plaintiffs' witnesses had not been present and that time had been taken to produce the remaining evidence, which was allowed for that purpose. The adjournment, therefore, was not of a general nature but had been specifically asked for and taken for the purpose of producing the evidence, but on 11-11-1975 which was the next date, no witness was in attendance. This is clear not only from the proceeding-sheet of that date but also from-the statement of the plaintiffs' counsel recorded to the effect that no summonses had been taken for the appearance of the witnesses. I find no basis for the assertion as made in the plaintiffs' counsel's statement that the evidence could not be produced.On account of some misunderstanding. The proceeding sheet of the previous date is quite clear and not amenable to any misunderstanding.
The assertion made before the lower appellate Court that the plaintiffs along with a witness, had been present on 11-11-1975, not being supported by the record, should not have been accepted. In the circumstance, the plaintiffs' conduct fully attracted the provision of Order XVII, rule 3. There appears to be no reasonable basis for using the discretion in favour of the plaintiffs, for, their conduct throughout had been anything but helpful for the progress of the case. They had examined only one witness during the period of over eighteen months.
Learned counsel for the respondent, however, relied on Bahadar Shah etc. v. Sharaf Major etc. (PLD 1967 Lah. 154) and Muhammad Halaem etc. v. H. H. Muhammad Naim etc. (PLD 1969 SC 270), In the former case, the plaintiff had, on the date to which the case had been adjourned, failed to pay the costs awarded, to submit naqsha dal and to bring evidence, for which default, his suit had been dismissed "for want of evidence, under Order XVII, rule, 3 of C. P. C." It was held that as naqsha dal was required to assess the correctness of the valuation of the suit, the Court should have proceeded under sections 9 and 10 of the Court Fees Act and not under Order XVII, rule 3. In the latter case, the cause had been dismissed for non-prosecution under Order XVII, rule 2, although there had been evidence on the record. In these circumstances, their Lordships observed "The consensus of judicial opinion appears to be in favour of the view that if it is possible for a Court to base a decision on merits upon the materials already brought on the record, it should proceed under rule 3 of Order XVII and not under rule 2."
None of the rulings, therefore, is attracted to the case in hand.
7. The decision of the trial Court is, therefore, in my opinion, unexceptionable. The discretion had been rightly exercised. It is not shown that the only evidence on the record, i.e. Of the Patwari, advances the case of the g plaintiffs on the material issues. The impugned order passed by the learned District Judge is, therefore, set aside and the judgment of the trial Court is maintained. The parties shall bear their own costs.