' The appellants had filed a suit for the recovery of Rs,50,00,000 against the respondents, as the damages on account of a cause of action based on defamation; issues were framed on 16-10- 2000, and more than ten opportunities were given to the appellants to produce their evidence, but on each date either their evidence was not available or their counsel was not present to conduct the case. Anyhow, on 30-10-2002, the last opportunity was granted to the appellants to produce their evidence on 14-1-2003. On this date again, evidence of the appellants was not available, resultantly, the trial Court, ostensibly by applying the provision of Order XVII, rule 3, C.P.C., closed the evidence of the appellants, and dismissed the suit for the lack of proof. Hence this appeal.
2. Legned counsel for the appellants by relying upon 1982 CLC 1872, PLD 1993 Peshawar 192, 1986 CLC 2399, PLD 1967 Lahore 154, 1999 MLD 818, 1999 SCMR 105, 1993 MLD 377, 1998 CLC 1680, 1990 MLD 171, PLD 1975 Lahore 386 and PLD 1960 Lahore 1010 states that when no evidence was available on the record, the Court should not have applied the provision of Order XVII, rule 3, of C.P.C., rather, should have granted an adjournment to the appellant, enabling them to produce the evidence.Adjournment to the appellant, enabling them to produce the evidence.
3. Heard. The above submission has no force; under the law where despite several opportunities the plaintiff of the case for no good/sufficient cause fails to produce his evidence, the Court has the jurisdiction to dismiss the suit by invoking both the provisions of rules 2 and 3, Order XVII, C.P.C.
Thus, without conceding but assuming that the trial Court has not applied the correct law; yet in the appellate jurisdiction, we can always resort to Order 17(2), C.P.C. And dismissed the suit under that provision as well; which undoubtedly is squarely applicable to the case. The learned counsel for the appellant from the record has not been able to show sufficient cause for number of occasions and particularly the last date of hearing for the non-production of appellant's evidence, therefore, the Court in such circumstances was under no legal obligation to keep on adjourning the case for indefinite period of time, even subject to payment of costs. Because, it may result into grave injustice to the opposite side, who is facing the curse of litigation and the costs may not be a compensation for such a suffering.
4. The upshot of the above discussion is that this appeal has no force and the same is accordingly dismissed.