' RANA ZAHID MAHMOOD, J.--- Constitutional petition against the concurrent orders passed by learned trial Court dated 15-7-2008 passed under Order XVII, rule 3, C.P.C. Closing the evidence of the petitioner/defendant in a suit of the respondent/plaintiff for recovery of Rs,10,02,800 from the petitioner wherein the petitioner failed to produce evidence for over two years and four months except on two occasions when on one occasion learned counsel for the petitioner/ defendant was also not present. The said order was assailed through revision petition before the learned Additional District Judge, Sahiwal, however, the revision petition was dismissed by learned Additional District Judge, Sahiwal vide order, dated 16-8-2008 which is impugned through the present writ petition.
2. Learned counsel for the petitioner has submitted that impugned order passed by learned Additional District Judge is patently illegal as it proceeds on misconception of factual position with regard to production of evidence by the petitioner and submitted with reference to interim orders dated 26-9-2006 and order, dated 22-4-2008, that on 26-9-2006 three D.Ws. Of the petitioner/defendant were present but due to shortage of time evidence could not be recorded whereafter it was adjourned to 8-11-2006 when evidence could not be produced by the petitioner.
He submitted that then on 22-4-2008 as well the evidence of the petitioner was present but as learned counsel for the defendant was not available, the same could not be recorded and the matter was adjourned to 4-6-2008 and on 4-6-2008 though evidence of the petitioner/defendant was not present but submitted that since the witnesses had been bound down by learned trial Court on 22-4-2008 for 4-6-2008, therefore, it was for the learned trial Court to procure their attendance by summoning them if they were not present on 4-6-2008 and submitted that learned trial Court then adjourned the case for evidence of the petitioner/defendant to 15-7-2008 as last opportunity and then closed the evidence. Learned counsel further submitted that in such a situation Order XVII, rule 3, C.P.C. Could not be pressed into service and placed reliance on 1993 MLD page 2312, 1999 SCMR page 105, 1999 CLC page 1969, 2003 MLD page 1559, 2006 YLR page 1206 and 2006 CLC page 1680 in support of his contentions.
3. I have heard learned counsel for the petitioner at this preliminary stage. In the first instance before taking up the case-law referred to above by learned counsel for the petitioner it may be mentioned that evidence of the plaintiffs/respondents was concluded on 6-3-2006 whereafter the case was adjourned to 5-4-2006 for evidence of the petitioner/defendant and from 5-4-2006 till 5-9-2006 on five occasions petitioner did not produce any evidence and he filed some application before the learned trial Court for summoning some witness through the agency of the Court which was allowed subject to cost of Rs,500 on the statement of respondents/plaintiffs to allow said application subject to cost. Certified copy of interim orders-sheet dated 5-9-2006 shows that on the side of order it is mentioned that said summoned could not be served due to change of abode/residence whereafter the Court directed the petitioner/defendant to produce the D.Ws. On his own responsibility for 26-9-2006 when the petitioner produced three D.Ws. But due to shortage of time evidence could not be recorded and it is noteworthy that thereafter on 8-11-2006, 3-2-2007, 17-4-2007, 15-5-2007, 30-5-2007, 8-11-2007 and 4-1-2008 evidence of the petitioner was not produced by him and on 16-7-2007. 4-9-2007 and 10-10-2007 due to leave of the trial Judge the case was adjourned to next dates and on these dates as well the evidence of petitioner was not produced by him. On 4-1-2008 the learned trial Judge gave last opportunity to the petitioner/defendant for evidence for 25-2-2008. On 25-2-2008 the evidence of the petitioner was not produced and learned trial Judge was also on leave. The case was then adjourned to 28-3- 2008 and on 28-3-2008 the evidence of the petitioner was not present and on their request for adjournment for evidence last opportunity was provided for 22-4-2008. On 22-4-2008 it was mentioned in the order that evidence of the petitioner/defendant was present but learned counsel for the defendant was not present and on the request made by petitioner/defendant in the interest of justice adjournment was granted and the D.Ws. Abdul Sattar, Atta Ullah and Masood Ahmad were directed to appear on the next date of hearing which was 4-6-2008 with a clear-cut direction that no further opportunity shall be granted for evidence of the petitioner and on 4-6-2008 learned counsel for the parties were present but evidence of the petitioner was not available and on request of the petitioner's counsel for production of above said D.Ws. The case was adjourned to 15-7-2008 when once again evidence was not produced by the petitioner and learned trial Judge then by observing in the impugned order passed under Order XVII, rule 3, C.P.C. That two years had elapsed and the petitioner in spite of last opportunity failed to produce defence evidence, therefore, his evidence was closed.
4. All the case-law referred to above by the petitioner and latest case-law on the subject relied upon by him as 2006 YLR page1206 goes to show that penal action under Order XVII, rule 3, C.P.C.
Could only be taken when the case was adjourned on the request of the party for production of evidence and in the present case as observed earlier the petitioner did not produce evidence before learned trial Court for over two years without any reasonable cause and in this way paved way for trial Court to take penal action under Order XVII, rule 3, C.P.C. It is also noteworthy that prior to 15-7-2008 a date for evidence by the petitioner/plaintiff was 4-6-2008 when evidence of the petitioner was not available and it was on the request of the petitioner that the case was adjourned to 15-7-2008 for petitioner/defendant evidence. It is also noteworthy that on 22-4-2008 though three D.Ws. Were present such as Abdul Sattar, Atta Ullah and Masood Ahmad from the side of the petitioner yet learned counsel for the petitioner/defendant was not available and it was on the request of the petitioner/defendant that the case was adjourned for evidence of said D.Ws.
For 4-6-2008 as last opportunity on his request but still the petitioner did not produce evidence on 4-6-2008 and another request for adjournment for production of evidence was made by the petitioner's counsel which was allowed and the case was adjourned to 15-7-2008. It is also pertinent to mention that prior to 22-4-2008, on 22-3-2008 as well evidence of the petitioner was not present and on the request of learned counsel for the petitioner case was adjourned for said evidence as last opportunity to 22-4-2008.
5. Import of Order XVII, rule 3 is very simple as has also been referred to above in the case of Faiz Ullah v. Ghulam Rasool 2006 YLR page 1206 that penal action could be taken for non-production of evidence against either of the party if time had been sought on the previous date by concerned party for production of evidence and then failed to do the needful on the next date of hearing. 1993 MLD page 2312 relied upon by learned counsel for the petitioner does not help the petitioner being distinguishable on facts and law as in said case only three opportunities were given to the defaulting party who as plaintiff failed to produce evidence and it was adjudged in said ,case of Muhammad Saleem and others v. L.D.A. That sufficient time had not been given to the plaintiffs in said case while' defendants were also responsible for the delay in disposal of the suit by taking a lot of time in filing written statement. It was in these circumstances that High Court interfered in revisional jurisdiction and allowed time to the plaintiffs to produce evidence in the suit filed by them. In the case of Zahoor Ahmad v. Mehra and others 1999 SCMR page 105 the Honourable Supreme Court of Pakistan was pleased to hold that law favour the decision on merits rather than technicalities unless a party was adjudged being guilty of gross negligence and in said case as market value of the land in question was to be ascertained by learned trial Court itself through evidence produced by the parties, therefore, it was held that learned trial Court had taken action under Order XVII, rule 3, C.P.C. Against the defendant in said suit by closure of his evidence in terms of Order XVII, rule 3, C.P.C. Which was not in conformity with the well-accepted principles of justice.
It may be mentioned that this case also does not extend any help to the petitioner whose conduct is throughout contumacious and is guilty of gross negligence and deliberately not producing defence evidence. 1999 CLC page 1969 also being distinguishable on facts and law is not helpful to the petitioner as in said case one P.W. Could not appear before the learned trial Court due to indisposition and was also a summoned witness and negligence could not be attributed to the plaintiff/petitioner in said case therefore, the order passed under Order XVII, rule 3, C.P.C. By learned trial Court was set aside by High Court in the circumstance of the case with a direction giving one opportunity to the petitioner/plaintiff to produce evidence in said case. 2003 MLD page 1559 relied upon by learned counsel for the petitioner again being distinguishable on facts and law is not applicable to the present case as in said case evidence of the plaintiff was present on certain dates but due to non-appearance of counsel of opposite party i,e, defendant counsel the evidence could not be recorded and as such it was held that the plaintiff in said case was not at fault while law favoured decision on merits and not on technicalities whereas in the instant case on one occasion when evidence of the petitioner/defendant was present in the shape of three D.Ws.
Learned counsel for the petitioner/defendant itself was not present, it was not fault on the part of other party, therefore as well case-law referred to above does not give any advantage to the present petitioner. 2006 CLC page 1680 also does not give any advantage to the petitioner being distinguishable on facts and law as in said case again under Order XVII, rule 3, C.P.C. Was adjudged to be against law against the plaintiff on his failure to produce evidence when his suit was also dismissed and it was observed that since the execution of the pro note had been admitted by defendant but with the plea that the same was executed as security without consideration and as such firstly for non-production of evidence action could be taken under Order XVII, rule 2, C.P.C.
Read with Order IX, rule 8, C.P.C. Therefore, learned Division Bench allowed the R.F.A. And remanded the case to the learned trial Court to provide one opportunity to the plaintiff/appellant for production of evidence.
6. As observed earlier with reference to 2006 YLR page 1206, action against the petitioner was taken by learned trial Court vide order, dated 15-7-2008 when earlier adjournment had been expressly sought by the petitioner's counsel for evidence of the defendant therefore, action was rightly taken by learned trial Court in the circumstance of the case where the petitioner/defendant failed to produce evidence for more than two years and produced the same once when his own counsel was not present and on his request the matter was adjourned and on earlier occasion though the evidence was present but the Court time was over, therefore, as observed earlier I have found that conduct of the petitioner before learned trial Court is contumacious and is based upon gross negligence, therefore, no interference is called for in the impugned order passed by learned trial Judge and endorsed by learned Additional District Judge, Sahiwal in revision petition vide order, dated 16-8-2008. This petition is without merit and is therefore, dismissed in limine.