' The land measuring 38 kanals, F 18 marlas, which is subject-matter of the dispute was included within the boundary line of Miani Sahib Graveyard in pursuance of the final notification, issued under section 4(2) of the Miani Sahib Graveyard Ordinance, 1962. The appellants filed a suit for declaration, challenging the inclusion of this land in the graveyard. Alternatively, they prayed for possession through removal of the graves from the site.
2. The respondent resisted the suit. Several issues arising out of the pleadings of the parties were framed by the learned trial Court on 11th December, 1967 and the case adjourned to 6th March 1968 for the appellants evidence. As they could not produce evidence, on this date, on their. Request the case was adjourned to 27th April, 1968 for evidence. The appellants again failed to lead evidence and the reason assigned by their learned counsel for this failure was that they were under the impression that the case being against a Government Department would be transferred to some other Court. To enable the appellants to produce their evidence the case was again adjourned to 15th June, 1968. A direction was however, given to them to bring their evidence, at their own responsibility. Even then the evidence was n(4/produced. The learned trial Court by its order dated 15th June, 1968 held that no reasonable cause was shown for non-production of the evidence and accordingly closed their evidence under Order XVII, rule 1 of the Civil Procedure Code and dismissed the suit.
3. Before the learned first appellate Court the respondent questioned the maintainability of the appeal on the ground that an order under Order XVII, rule 1 was not appealable. The learned Additional District Judge was of the opinion that the judgment passed by the learned trial Court, in refusing the adjournment amounted to a decree and was thus appealable. On merits he maintained that despite having been given three opportunities, the appellants failed to produce evidence ; the learned trial Court was justified in closing appellants' evidence. He thus dismissed the appeal on 4th February, 1969. The appellants then filed this Second Appeal.
4. The learned counsel for the appellants argued that the appellants' learned counsel who conducted their case in the trial Court, did not inform them that the case was fixed for evidence and that there was no wilful default in producing the evidence. This submission is untenable. No such plea was raised before the learned first appellate Court. Even otherwise there is nothing on the record to support this argument. In any case the matter rested between the appellants and their counsel. They are not entitled to any indulgence on this ground in Second Appeal.
5. It was next contended that the order of the learned trial Court in substance was passed under Order XVII, rule 3, Civil Procedure Code ; there was documentary evidence on the file in support of the appellants title to the land in dispute , the case therefore, should have been decided on merits on the basis of this documentary evidence. It was pointed out to the learned counsel that the appellants did not tender any document in evidence, and therefore, the learned trial Court could not look into any document which did not form part of the record, in accordance with law. He did not press this argument any further but came forth with another plea that the provisions of Order XVII, rule 3, are penal in nature and should be used sparingly. It was further urged that that the expression "proceed to decide the suit forthwith as used in Order XVII, rule 3, Civil Procedure Code does not mean to decide the suit immediately. In his submission the learned trial Court should have adjourned the case to the next day, to enable the appellants to get their statement recorded and tender the documents in evidence. In this connection he cited :- ' Bahadar Shah and others v. Sharaf Major and others (1) and Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (2).
6. There is no merit in these submissions of the appellants' learned counsel. The main question to be considered is, as to whether or not there was sufficient cause for adjournment of case. It is evident from the record that three opportunities were given to the appellants. No cogent reason was put forth before the learned trial Court by the appellants (1) PLD 1967 Lab. 154 (2) PLD 1971 5 C 434 for their failure to bring evidence. On this point both the learned Courts below gave findings against the appellants. Whether or not there was sufficient cause for grant of adjournment, is primarily a s question of fact. No doubt the provisions of Order XVII, rule 3 of the Civil Procedure Code are penal in nature, but in the circumstances of the case there was nothing illegal in application of these provisions by the learned trial Court. As regards tendering of documentary evidence, no request in this behalf was made to the learned trial Court. This point was also not urged before the learned first appellate Court.
7. In Abdul Aziz's case the Court after recording the evidence which was produced, refused to adjourn the case under Order XVII, rule 3 of the Civil Procedure Code for evidence but fixed it for arguments. It was argued before the Supreme Court that the suit should have been decided forthwith and that its fixation for arguments was illegal. This contention was repelled by the Supreme Court and it was laid down that the word "forthwith" does not mean the same day and this expression as used in the context of Order XVII, rule 3 of the Civil Procedure Code means to decide the suit within a reasonable time. The ruling reported as Bahadar Shah and another v.
Sharaf Major and another (1), has been referred to in this authority. It is quite obvious that the observations made in Abdul Aziz case have no applicability to the appellant's case. The learned trial Court's refusal to adjourn the case was not violative of any provision of law and the learned first appellate Court rightly concurred with it.
8. As a last resort the learned counsel argued that the learned trial Court failed to prepare the decree sheet and thus committed an illegality. The learned counsel when told that if it was so, the first appeal was not competent, abandoned this plea.
9. As a result of this discussion this Appeal fails and is hereby dismissed leaving the parties to bear their own costs.
(1) PLD 1967 Lah. 154