' MEHMOOD MAQBOOL BAJWA, J.---Reference under section 18 of the Land Acquisition Act, 1894, was filed through Land Acquisition Collector by the present appellant against the respondents questioning the quantum of compensation determined and given in the award, seeking its enhancement.
2. Claim of the appellant was questioned by the respondents.
3. After casting issues reflecting from pleadings of the parties, the appellant was required to produce evidence but his failure to produce the evidence despite availing opportunities, right of the appellant to produce evidence was closed under Order XVII, Rule 3 of the Code of Civil Procedure, 1908, (Act V of 1908) (Hereinafter called the Code) resulting in dismissal of reference vide judgment and decree dated 27-5-2009 drawn up by the learned Senior Civil Judge, Lodhran.
4. Learned counsel for the appellant assailing the vires of impugned judgment and decree and interim order closing the right of appellant to produce evidence, submitted that the order regarding closure of evidence is legally not sustainable and was made in utter, violation of provisions of Order XVII, Rule 3 of the Code. In order to substantiate the contention, learned counsel for the appellant while making reference to the interim order dated 18-4-2009, contended that the date i,e, 27-5-2009 when evidence of appellant was closed was not given at the request of appellant as is evident from the interim order dated 18-4-2009 which was granted in view of the request made at the instance of respondents Nos.3 to 6 due to non-availability of their counsel who was in Saudi Arabia. Submitted that since the date when evidence was closed was not given at the instance of appellant, therefore, the impugned judgment is legally not sustainable. Reliance was placed upon "Maulvi ABDUL AZIZ KHAN v. Mst. SHAH JAHAN BEGUM AND 2 OTHERS"( PLD 1971 SC 434), "JIND WADDA and others v. ABDUL HAMID and another" (PLD 1990 SC 1192) and "QUTAB-UD-DIN v. GULZAR and 2 others" (PLD 1991 SC 1109). Further submitted that law favours adjudication on merits. Help was sought from the dictum laid down in "ZAHOOR AHMED v. MEHRA through Legal Heirs and others" (1999 SCM R 105).
5. On the other hand, learned counsel for the contesting respondents submitted that frequent and liberal adjournments were taken by the appellant who intentionally did not produce the evidence and as such the learned trial court rightly closed the evidence. Replying the argument with reference to the adjourned date of hearing not at the request of the appellant, it was submitted that perusal of order dated 18-4-2009 clearly suggests that evidence of appellant was not in attendance on that date and as such absence of counsel for the contesting respondents who was in Saudi Arabia becomes meaningless.
6. Since learned counsel for the appellant focused his attention regarding the non-applicability of provisions of Order XVII, Rule 3 of the Code of Civil Procedure, 1908, therefore, it is desirable to deal with this aspect prior to dealing with the merits.
7. As referred earlier, evidence of appellant was closed on 27-5-2009. On the previous date of hearing i,e, 18-4-2009 evidence of appellant was not present but it was also intimated to the court on behalf of respondents Nos.3 to 6 that their counsel is not available due to performance of Umrah. Admittedly, the date i,e, 27-5-2009 was not given at the exclusive request of present appellant and as such we are in agreement with the contention of learned counsel for the appellant regarding non-applicability of Order XVII, Rule 3 of the Code, as held in the case-law cited at bar by learned counsel for the appellant.
8. However, the fact by itself is not sufficient to decide the fate of the appeal in affirmative because the matter has to be examined from another angle as well.
' There is another provision contained in Order XVII, Rule 1 of the Code of Civil Procedure 1908, which was inserted by the Lahore High Court by introducing amendment in Order XVII, Rule 1 of the Code which is reproduced for ready reference: "High Court Amendments. -Lahore (i) To rule 1 add the following as sub-rule (3):
(3) Where sufficient cause is not shown for the grant of an adjournment under sub-rule (1) the Court shall proceed with the suit forthwith" (underlining is ours) .
Keeping in view the amendment introduced by the Lahore High Court, there can be no two opinions that the yardstick for applicability of the provision introduced by amendment is entirely different from the parameter mentioned in Order XVII, Rule 3 of the Code of Civil Procedure, 1908. As referred earlier, there is no cavil to the well-settled proposition of law that for attraction of provisions of Order XVII, Rule 3 of the Code of Civil Procedure, 1908, there must be a request on the part of defaulting party to get adjournment but no such condition finds B mentioned in Order XVII, Rule 1(3), of the Code (Lahore. High. Court Amendment), according to which the court shall proceed with the suit forthwith where "sufficient cause" is not shown for grant of adjournment under sub-rule (1)
' We may advantageously make reference to the dictum laid down by honourable Supreme Court of Pakistan in Pirzada Amir Hussain etc. v. Mrs. Shamim Shah Nawaz etc. 1987 SCM R 249 in which while dealing with both provisions under discussion it was held that notwithstanding that the Order XVII, Rule 3 of the Code does not apply to a case where suit is not adjourned at the instance of a party but court can close evidence in exercise of the powers under sub-rule (3) of Rule 1 (as amended in Punjab in 1937) if "sufficient cause" has not been shown for the grant of an adjournment.
' The same proposition was dealt with by a learned Division Bench of this Court in "GHULAM QADIR alias QADIR BAKHSH v. Haji MUHAMMAD SULEMAN and 6 others" (2002 CLC 1111) and it was held that where the litigant has made it impossible for the trial court to proceed with the matter by failing to bring any material on record, provisions of Order XVII, Rule 1(3) of The Code of Civil Procedure, 1908, does not debar the trial court from dismissing the suit.
' In order to determine applicability or otherwise of provisions of Order XVII, Rule (1)(3) of the Code, interim order-sheet has to be examined, also to know how many adjournments were taken by the appellant.
9. Issues were cast on 27-3-2006 directing the appellant to produce his evidence on 13-6-2006 when it was adjourned to 6-10-2006 as per request of the appellant. Again adjournment was claimed for 10-1-2007 and then due to non-availability of evidence, it was again posted for 7-4- 2007 granting last opportunity but even grant of last opportunity did not prompt the appellant to produce evidence and as such it was adjourned to 11-6-2007 again granting last and final opportunity. When, however, no proceedings could be taken due to relinquishment of charge by the Presiding Officer adjourning the lis for 25-7-2007. Record reveals that only on 27-9-2007 evidence of the appellant was in attendance but adjournment was claimed due to observance of strike by the advocates.
' Perusal of interim order-sheet suggests that on 15-12-2007, 13-3-2008, 14-7-2008, 20-9-2008, 9- 10-2008 and 11-11-2008 evidence was not present and it was adjourned for 6-1-2009 when reference was directed to be placed before the learned District Judge, Lodhran, for entrustment of same to the court of competent jurisdiction i,e, Senior Civil Judge.
10. Matter was taken up by the Senior Civil Judge, Lodhran, on 12-1-2009 adjourning the same for 13- 2-2009 when evidence was not present and at the request of appellant, last opportunity was afforded for 18-4-2009 on which date again evidence was not present but counsel for the contesting respondents was also not in attendance as he was in Saudi Arabia to perform Umrah, granting last opportunity for 27-5-2009 when the evidence was not in attendance resulting in closure of the same.
11. Brief history of the interim orders clearly suggests that frequent and liberal adjournments were granted to the appellant for production of evidence but he failed to produce his evidence. We not unmindful that on 27-9-2007 evidence of appellant was in attendance but adjournment was sought at the instance of appellant and adversary due to observance of strike by the advocates. In the attending circumstances it cannot be said that the said adjournment was granted exclusively at the request of adversary.
12. The expression "sufficient cause" referred to in Order XVII, Rule 1(3) of the Code (Lahore High Court Amendment) has not been defined by tit means a cause and reason beyond the control of the party, ruling out element of culpable slackness and negligence. We are not unmindful that the expression has to be interpreted liberally in order to advance cause of justice but nevertheless simultaneously keeping in view the intention of the legislature element of vigilance is required to be kept in view.
13. Perusal of memorandum of appeal does not suggest any ground, whatsoever, prompting us to show indulgence in favour of appellant. Rather para (2) of the memorandum of appeal suggesting the grounds assailing the vires of impugned judgment and decree are totally silent regarding the reasons for non-production of evidence on the day, when it was closed. During the course of arguments also nothing was suggested to show the reasons due to which the appellant was unable to produce evidence. What to speak of putting "sufficient cause" for non-production of evidence on the day when it was closed, even no 'cause' or reasons was given and as such provisions of Order XVII, Rule 1(3) of Sikandar v. Home Secretary the Code (Lahore High Court Amendment) was fully attracted to the facts of the case.
14. No doubt law favours adjudication on merits as held by the honourable Supreme Court of Pakistan in "ZAHOOR AHMED v. MEHRA through Legal Heirs and others" (1999 SCM R. 105) cited at bar by learned counsel for the appellant but each case has to be decided keening in view the facts and circumstances. Perusal of the interim order-sheet suggests that issues were cast on 27-3- 2006 and despite grant of liberal adjournments (fourteen in numbers) barring those when the Presiding Officer was on leave, the appellant failed to produce evidence and that too without any justified cause and as such his conduct was F contumacious and outcome of gross negligence falling within the exception expounded in the Report under reference. There is little cavil with the well expounded proposition of law that law helps those who are vigilant and not indolent.
15. We are also conscious of the fact that valuable rights of the appellant are involved in the lis which was also argued by learned counsel for the appellant but the fact by itself is not sufficient to grant premium to the appellant, keeping in view the conduct of appellant demonstrating culpable slackness and negligence.
16. Viewed from whichever angle, we are convinced that the judgment and decree does not call for any interference. However, the learned trial court should have closed the evidence under Order XVII, Rule 1(3) of the Code of Civil Procedure, 1908, (Lahore High Court Amendment) instead of applying the provisions of Order XVII, Rule 3 of The Code and as such while rectifying the provisions under which evidence was closed, appeal preferred by the appellant being devoid of force is dismissed but without any order as to costs.