' RAUF AHMAD SHEIKH, J.---The appellant has assailed the vires of judgment and decree dated 8-6- 2009 passed by the learned Civil Judge 1st Class, Kharian, District Gujrat, whereby a suit for specific performance of the contract filed by him against respondents Nos.1 to 3 was dismissed.
2. Initially the suit was filed against defendant/respondent No.1 but subsequently defendants/respondents Nos.2 and 3 along with one Liaqat Ali were also impleaded but Liaqat Ali was again deleted.
' The plaintiff/appellant had contended that defendant/respondent No.1 was owner in possession of a Haveli' constructed over land measuring one Kanal 17, Marlas along with boundary wall and iron gate as per Revenue Record, who entered into an agreement to sell the same for a sum of Rs.40,70,000 vide dated 3-5-2004 and received the total amount as earnest money due to mutual trust because parties live in one village and undertook to execute the sale-deed. It was further averred that at the same time Liaqat Ali defendant/respondent No.4, whose name was subsequently deleted, received the money to meet the expenditures for registration of the sale- deed but the defendants/respondents had refused to execute the sale-deed after making promises.
4. The defendant/respondent No.1 had contended that the land in dispute was owned and possessed by defendants/ respondents No.2 and 3. He further contended that no agreement to sell was ever executed and no money was paid to him. The defendants/respondents contested the suit on factual and legal grounds. The learned trial court framed following issues on 23-5-2007 in view of the respective contentions of the parties:--
(1) Whether plaintiff is entitled to a decree for specific performance as prayed for? OPP
(2) Whether plaintiff has no cause of action and locus standi? OPD
(3) Whether suit has not been properly valued for the purposes of court-fee and jurisdiction? OPD
(4) Whether suit is barred by law? OPD
(5) Relief.
5. Vide order dated 8-6-2009 the learned trial court closed the evidence of the plaintiff/appellant under Order XVII, Rule 3', C.P.C. And proceeded on to dismiss the suit through the impugned judgment and decree.
6. The appellant has contended that the impugned judgment and decree are uncalled for and unwarranted under the law; that the learned trial court failed to apply the judicial mind; that the appellant was living abroad and came to Pakistan for a short period and handed over handsome amount of Rs.40,70,000 being total consideration; that he executed the special power of attorney in favour of respondent No.4 to pursue the matter but he was won over by defendant/respondent No.1, who did not watch the interest of the appellant honestly and with due diligence; that the appellant fell prey to the mutual collusion between respondents Nos.1 and 4 so is entitled to at least one more opportunity to lead the evidence and that the law requires adjudication of civil suits on merits rather on technicalities. Learned counsel for the appellant has vehemently contended that gross mis carriage- of justice has been caused by applying the penal provisions of Order XVII, Rule 3, C.P.C. In haste. It is urged that the trial court was not obliged to decide the case on the same day and even after closing the evidence should have given one opportunity for appearance of the appellant in the witness box. It is further urged that valuable rights of the parties were at stake in the suit so its decision by invoking the penal provisions is against the principles of natural justice. In support of the contentions raised, reliance is placed on Muhammad Aslam v. Nazir Ahmed (2008 SCM R 942). It is also urged that on 07.04.2008, the evidence was available and the Presiding Officer was on leave so the provisions of Order XVII, Rule 3, C.P.C. Were not attracted.
7. Learned counsel for defendants/ respondents Nos.1 to 3 has controverted the above contentions.
It is contended that the suit remained under adjudication for a period of almost three years and nine months and that the issues were framed on 23-5-2007 but the plaintiff/ appellant in spite of many opportunities including the last and final opportunity did not , produce the evidence so was not entitled to any further adjournment due to his contumacious negligence to lead the evidence in support of his contentions. It is contended that even on 7-4-2008, when the Presiding Officer was on leave, the evidence was not' in attendance and the appellant was given four more opportunities thereafter but neither he himself appeared nor his attorney or witnesses were present on 8-6-2009.
In support of the contentions raised, reliance is placed in Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others (PLD 2003 SC 180).
8. The perusal of the record reveals that the suit was filed on 13-9-2005 and the issues were framed on 23-5-2007. Thereafter the suit was fixed for 5-12-2007 but the evidence of the plaintiff/appellant was not present so an adjournment was given to him on his request and the suit was fixed on 7-4- 2008. On this date of hearing, the Presiding Officer was on leave so the suit was adjourned to 22-9- 2008 by the Reader for the same purpose. He could have adjourned the suit for the same purpose as is provided under Order XVII, Rule 5 C.P.C. On 22-9-2008 the evidence was not available and the last opportunity was given to the plaintiff/appellant and the suit was adjourned to 13-1-2009. On the said date of hearing again the plaintiff/appellant did not produce the evidence and after granting the last and final opportunity the suit was adjourned to 24-3-2009. On 24-3-2009 the evidence was not available and the last and final opportunity subject to payment of Rs.500 as costs was granted and the suit was fixed for 8-6-2009. On this date of hearing also, no diligence was shown by the plaintiff/ appellant as neither he nor his attorney or the learned counsel appeared and only the Clerk of the counsel put in appearance and submitted an application for adjournment contending therein that the attorney of the appellant was unable to produce the evidence. However, no ground regarding his inability to produce the evidence was put forth. No doubt if sufficient cause is shown, the Court may grant adjournment under Order XVII, Rule 1. C.P.C./ However, in view of Order XVII, Rule 1 Sub-Rule (3), C.P.C. As inserted by this Court through an amendment, the court shall proceed with the suit forthwith if any party to the suit to whom the time had been granted fails to produce the evidence or to cause attendance of the witnesses or to perform any other act necessary to the further progress of the suit. In the instant suit sufficient opportunities were given to the plaintiff/appellant. The learned trial court gave a warning that last opportunity was being given on 22-9-2008 and thereafter the last and final opportunities were given on two successive dates of hearing preceding to 8-6-2009, on which the penal provisions of Order XVII, Rule 3, C.P.C. Were invoked. In these circumstances, the plaintiff/appellant cannot claim that sufficient opportunity was not given to him. It is true that in civil suits, the valuable rights of the parties are involved but the balance has to be struck between the plaintiff and the defendant. One of the objects set forth in the National Judicial Policy is expeditious disposal of cases. The adjournment friendly culture has to be done away with. The contention that the attorney of the plaintiff/appellant was won over by respondent No.1 is not substantiated by any tangible proof rather he had made an attempt to get adjournment even on 8-6-2009. This excuse appears to be result of an afterthought. On 8-6-2009 neither the learned counsel for the plaintiff/appellant nor his attorney or he himself appeared in the court and only an application was presented through the Clerk of the counsel without assigning any reason as to inability for non-production of the evidence. After three successive adjournments being given and the grant of the last and final opportunity subject to payment of costs on 24-3-2009, the plaintiff/appellant should have shown some responsibility and produced the evidence. The contumacious omission to produce the evidence precluded him to claim that he was deprived of the right to prove his contention. The adjournments were granted on three continuous preceding dates of hearing so he cannot say that he should have been given an opportunity for casual leave of the Presiding Officer on 7-4-2008. In 2008 SCM R 942, the plaintiff was present on the date of hearing, when the provisions of Order XVII Rule 3 C.P.C. Were applied so the august Supreme Court of Pakistan held that he should have been allowed to enter in the witness box but in the instant case neither the plaintiff/ appellant nor his learned counsel or attorney appeared in the court as is evident from order dated 8-6-2009. The learned trial court decided issue No.1 against the appellant as he failed to produce any evidence in support of the contentions raised therein. There was no need to call upon the defendants/ respondents to lead evidence in respect of the other issues and grant of adjournment in this regard. The contention that the averments made in the plaint should have been kept in view is also without force as the pleadings do not form part of the evidence although the parties are required to lead evidence in accordance with the tame. In this respect, reliance is placed on Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 SC 604) Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others (PLD 2003 SC 180), Abdul Shakoor and others v. Province of the Punjab and 4 others (2005 SCM R 1673), Sheikh Muhammad Sarwar v. Zaheer Ahmad (2009 M LD 481) and Abdul Sattar v. Chairman, Pakistan Railways and others (2011 YLR 1003).
9. For the reasons supra, the appeal is without merits and the same is hereby dismissed.