The respondent, Habib Bank Limited, filed a suit against the petitioners, Messrs Ahmed Autos and another, for recovery of Rs. 36,682. The suit was resisted by the petitioners whereupon the following issues were framed:-
(1) Whether the defendants have repaid the loan in full? O. P. D.
(2) Whether the suit has been instituted by an incompetent person? O. P. D.
(3) Whether the suit is not maintainable in view of the preliminary objections Nos. 2 to 5? 0. P. D.
(4) Relief.
Since the onus of all the issues was on the petitioners, they were required to produce their evidence on the 26th April, 1979. On that date, neither the petitioners nor their counsel was present and, therefore, the Civil Judge, who was dealing with the suit, decreed the suit. The appeal preferred by the petitioners has also failed. They have, therefore, comeup in revision to this Court.
2. The learned Civil Judge had decreed the suit with the following observations:- "None appeared on behalf of the defendant the whole day long. The Court is to rise for the day. A perusal of the order-sheet reveals that the case is hanging for the defendants evidence since 14- 9-1978. No list of witnesses was filed by the defendants. A list of witnesses put in by the plaintiff on 26-7-78 is available on the file. Feeling fortified by the view held by his Lordship Mr. Justice S. Aftab Hussain in the case reported as PLD 1979 Lab. 145 therefore, the defendants' evidence is hereby closed.
The defendants admitted having availed themselves of the facility of loan and they having alleged repayment of the loan in full,, therefore, all the issues had to be discharged by the defendants. Their failure to prove repayment of the loan admittedly obtained by them from the plaintiff cannot but and does lead to one conclusion that the suit --amount is still outstanding against and is recoverable from them."
The learned Additional District Judge, who had dismissed the appeal, gave the following reasons in support of his order:- "Many opportunities as obvious were allowed to the defendants. He did acknowledge the credit facility allowed to him by the bank but stated having discharged the liability. Obviously any payment to the bank would be a question involving documentary proof. Even if the oral evidence could not be produced on so many dates, it was incum--bent upon the defendants to have produced some tangible proof on the file to show that he has discharged his liability. The statement of account prepared by the bank is also on the file and can be seen for the disposal of this appeal. Even at the appellate stage the defendants had not produced any document as aforementioned so as to show that nothing was due from them. It was not merely a question of non-supply of list of witnesses which has been emphasized. The appellants cannot even take the benefits on account of the principal laid down in the case reported as PLD 1980 Lah. 495 and the circumstances of this case does not attract the principal of that authority. The Court had merely observed about the non-submission of the list of witnesses whereas the case ordinarily could have been decided under Order XVII, rule 3, C. P. C.
3. It was contended by learned counsel for the petitioners that the learned Civil Judge could not close the petitioners' case for non-filing of the list of witnesses. For this proposition, he placed reliance on Ghulam Murtaza v. Muhammad Ryas and 3 others (1). As for the applicability of the provisions of Order XVII, rule 3, of the Code of Civil Procedure, which were referred to by the learned Additional District Judge; the submission made by learned counsel for the petitioners was that since the aforementioned date for evidence had not been fixed by the trial Court at the request of the petitioners, their case could not be closed on the strength of the said provisions. It was explained by him that on 3rd April, 1979, the Presiding Officer was on leave and, therefore, the case was adjourned to 26th April, 1979, in routine, and not at the request of the petitioners. In this connection, he invited my attention to Maulvi Abdul Aziz Khan v. MTShah Johan Begum and 2 others (2).
(1) PLD 1980 Lab. .495(2) PLD 1971 SC 434
4. In reply. It was argued by learned counsel for the respondent that as the petitioners had not appeared before the trial Court-and they were required to prove all the issues framed in the suit, the judgment and decree passed by the learned trial Court were warranted by the provisions of Order IX, rule 6 read with Order XVII, rule 2, of the Code of Civil Procedure. It was also submitted by learned counsel for the respondent that since the petitioners had not shown sufficient cause for not producing evidence on the 26th April, 1979, they could not have another opportunity to produce their evidence. In this connection, he placed reliance on sub-rule (3) of rule 1 of Order XVII of the Code of Civil Procedure. It was, however, frankly conceded by learned counsel for the respondent that the petitioners' case could not be closed for non-filing of the list of witnesses or by invoking the provisions of Order XVII, rule 3 of the Code of Civil Procedure, to which reference was made by the learned Additional District Judge.
5. While commenting on the arguments raised by learned counsel for the respondent, it was maintained by learned counsel for the petitioners that according to the Order XVII, rule 2, the trial Court had two options before it, namely, either to dispose of the suit in terms of the provisions of Order IX or to make such other order as it thought fit. According to the learned counsel since the order of the learned trial Court did not make a mention of the provisions of Order IX, rule 6, nor there was anything showing that the petitioners had been proceeded against ex parte, it could not be assumed that the said Court had passed the impugned judgment and decree on the basis of the provisions of Order XVII, rule 2, read with Order IX, rule 6 of the Code of Civil Procedure. In view of this, it was urged by learned counsel for the petitioners that the order made by the learned trial Court was the one which is contemplated by the expression "make such order as it thinks fit" occurring in rule 2 of Order XVII. As for the provisions of sub-rule (3) of rule I of Order XVII, it was submitted by learned counsel for the petitioners that the said provisions are attracted when a party is present before the Court and requests for adjournment showing without sufficient cause therefor, but as the petitioners were not in attendance before the trial Court on the fateful date, they could not be proceeded against under sub-rule (3) of rule 1 of Order XV11.
6. In view of the arguments advanced by learned counsel for the parties what is to be examined is whether in the circumstances of the present case the trial Court could proceed in terms of the provisions of sub-rule (3) of rule 1 of Order XVII of the Code of Civil Procedure. Rule 1 of which sub-rule (3) has been relied upon, reads as follows:- "1. Court may grant time and adjourn hearing-(i) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit.
Costs of adjournment.-(2) In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment.
Provided that, when the hearing of evidence has once begun, the hearing of the suit shall be continued from day to day until all the witnesses in attendance halve been examined, unless the Court finds the adjournment of the hearing beyond the following day to be necessary for reasons to be recorded.
(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."
From the phraseology of sub-rules (1) and (3) it is evident that these provi--sions would be attracted where a party seeks adjournment by entering appearance before the Court or otherwise but since there is nothing to show that the petitioners had prayed in any manner that their case fixed for 26th April, 1979, may be adjourned the provisions of sub-rule (3) of rule 1` of Order XVII are not applicable to the present case.
10. In the instant case the petitioners were not present before the learned trial Court on the date fixed for the hearing of the suit, that is, 26th April; 1979. In view of this, learned counsel for the parties were unanimous that the learned trial Court could proceed in the light of the provision of rule 2 of Order XVII of the Code of Civil Procedure. This rule makes the following reading: "2 Procedure if parties fail to appear on day fixed.-Where, on any day to which the hearing of the suit is adjourned, the. Parties or any of them .Fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit."
According to these provisions, due to the absence of the petitioners on the fateful date, the trial Court could dispose of the suit in one of the modes prescribed in that behalf by Order IX or make any other appropriate order. The order passed by the learned trial Court, in the present case, does not say, in so many words, that the Court had disposed of the suit in accordance with the provisions of Order IX but one thing is very clear that the Court had decided the suit forthwith by passing an ex parte decree in favour of the respondent and against the petitioners. Looking at the language of rule 2 it can be safely presumed that if a suit is disposed of by the Court in the absence of the defendant it will be deemed to have been disposed of in one of the modes directed in that behalf by Order IX but if the suit is not disposed of and any other order is made, it would be assumed that the Court had adopted the course other than that of disposing of the suit as aforesaid. Since in the case in hand the trial Court had passed ex part judgment and decree in favour of the respondent (plaintiff) and against the petitioners (defendants) I am of the considered opinion that the learned trial Court had disposed of the suit on the strength of the provisions of Order XVII, rule 2, read with Order IX, rule 6, of the Code of Civil Procedure. The ex parte judgment and decree passed by the learned trial Court are, therefore, not open to interference by this Court.
11. In this view of the matter, the civil revision fails. It is, accordingly, dismissed. There shall be no order as to costs.