' DR. SAJID QURESHI, J.---This civil revision is directed towards judgment and decree, dated 26-6- 1997 passed by learned Civil Judge, Islamabad, in which the suit was dismissed after closing the right to adduce evidence under Order XVII, Rule 3 of C.P.C., which was upheld by the learned Addl.
District Judge, Islamabad vide judgment, dated 24-6-2006. Briefly the facts are that the petitioner filed a suit for recovery of Rs,12,36,000 and the defendant put in appearance and contested the suit.
Written statements were filed and issues were framed.
2. The learned counsel for the petitioner argued that the lower Courts had wrongly interpreted the law and erred in law; that there was compelling circumstances which prompted the petitioner not to produce evidence because a death had taken place in the family and hence he could not attend the Court next day. Affidavits along with death certificate from Al-Malik Hospital were filed in the Court but the lower Court dismissed the suit and struck off the right of evidence and closed down this right. Further, the learned trial Court had erred in law in that according to Order XVII, Rules 2 and 3 adjournment was not requested by the defaulting party but it was the Court itself which adjourned the proceedings and then the petitioner failed to produce evidence. Once the Court adjourns the proceedings, then the petitioner cannot be proceeded against which resulted in closure of evidence. He relied on 1990 CLC 1743 (Arifa Amjad v. Abbas Tayyab Dar) and 1984 CLC 3080 (Pirzada Aamir Hassan v. Shamim Shah Nawaz). The learned counsel also contended that a last opportunity must be given which was not done so and the record must show this, since Order XVII, Rule 3 is very clear. On this point, he again relied on an earlier citation 1990 CLC 1743 (Arifa Amjad v. Abbas Tayyab Dar). Since the petitioner was not present in Court, the Court must give a last opportunity for evidence. Finally he demanded that this case may be remanded back to the trial Court so that an opportunity be given for recording of evidence.
2. The learned counsel for the respondent most vehemently argued that firstly under section 114 of C.P.C., there is a review provision available which had not been utilized by the petitioner. The learned counsel further contended that the lower Court had given six opportunities for the plaintiff to produce evidence but he had not done so and then under Order XVII, Rule 3 had closed down the right of evidence. The petitioner was given six opportunities which is indicative from the record namely that ample opportunities were given and the petitioner failed to avail those opportunities. It was on 26-6-1997 that the learned lower Court had closed the right of evidence. He relied on 1990 CLC 728 (Nazeer Muhammad v. Islamic Republic of Pakistan), in which the right of evidence was closed down after giving three opportunities. Further, in 2000 SCM R 1135 (Shahid Hussain v.
Muhammad Akram) in which it was held that under Order XVII, Rules 1 and 3 the trial Court was right to close the evidence since there was a failure to produce evidence on final date. Also relying on 1992 CLC 102 (Siraj Din v. Lahore Development Authority) under Order XVII, Rule 3, last opportunity was given to produce evidence but the petitioner failed to do so and after framing of issues four opportunities were given to produce evidence but the petitioner failed to do so.
' The learned counsel further stated that the learned Addl. District Judge, Islamabad was correct in upholding the lower Court judgment and decree, dated 26-6-1997 in that apart from the large number of opportunities which were given for production of evidence but the petitioner failed to do so. There was a one year period in which the petitioner was to produce evidence after framing of issues and therefore the contention that the lower Court hurriedly passed the judgment and decree is not correct. Finally, the learned counsel stated that under section 115 a revision decision can be exercised as in this case but as far as section 114 is concerned no review petition was filed, which was a remedy available to the petitioner and finally concluded that the Civil Revision may be dismissed since the lower Courts had concurrent judgments.
3. Arguments heard. Record perused and the case-law examined.
4. It is agreed that section 114 of C.P.C. Allows for review but the remedy was not availed by the petitioner. This matter needs no further adjudication. It is clear from the record that the ample opportunities (six) were given to the petitioner to produce evidence but he failed to do so. There is case-law which allows for dismissal of suits if there have been three or four opportunities missed.
There is a point that the petitioner's absence was not intentional, this being so, but this does not justify the previous opportunities missed by the petitioner and as a result the learned trial Court proceeded against him while passing the impugned judgment and decree. I subscribe to the view, that the death of the close relative as a cause for non appearance and non production of evidence, this seems to be an afterthought. Further, the record shows that despite six opportunities there was a period of one year for production of the petitioner's evidence, which resulted in no progress of the trial of the suit, which ultimately was dismissed. I have examined Order XVII, Rules 2 and 3. Rule 2 indicates that when parties fail to appear on a day fixed and Rule 3 applies when time has been granted for production of evidence or to cause the attendance of witnesses, the Court may proceeded to decide the suit. The learned trial Court had correctly interpreted Order XVII, Rules 2 and 3 which was upheld by the learned appellate Court. There was no error committed by the trial Court and warrants no interference by this Court, and there seems no justifiable reasons to remand it back to the trial Court.
5. In view of the above, the impugned judgment and decree, dated 24-6-2006 by the learned Addl.
District Judge, and judgment and decree, dated 26-6-1997 respectively by the learned trial Court, are hereby upheld and this civil revision is therefore dismissed. The parties to bear their own costs.