SADIQ HUSSAIN BHATTI, J.---Through instant second appeal the appellant has assailed the judgment dated 7-4-2009 and decree date 15.4.2009, passed by V Additional District Judge, Karachi Central in Civil Appeal No,59 of 2008, whereby the appeal was dismissed.
2.Facts of the case, in brief, are that in the factory of the appellant two electricity meters are installed. On 06.06.1982 the electricity connections were cut off and after deposit of Rs,25,000/- the same were restored and new meters were installed. On 28.11.1982 the electricity supply was again disconnected in respect of both the meters. The bill for the month of January, 1983 for one meter was Rs,2140.23 to which an additional amount of Rs,8,16,559.33 was added. The appellant sent two legal notices to the respondents on 18.1.1983 which were replied by the respondents on 2.3.1983.
However, no reduction in the bill was granted. Subsequently, the appellant filed Suit No, 59 of 1985 before this Court, seeking declaration and injunction. However, due to change in pecuniary jurisdiction of this Court, the said suit was transferred to District Judge, Karachi Central who marked it to III Senior Civil Judge, Karachi Central who dismissed the same vide judgment dated 25.3.2008.
The appellant assailed the said judgment by filing Civil Appeal No,28 of 2008, which was also dismissed by the impugned judgment hence the present II Appeal.
3.Learned counsel for the appellant submitted that in this case a commissioner was appointed to record evidence and the entire record was with the commissioner who did not appear before the court or submit the record. He has referred to page 149 to argue that evidence of the plaintiff's witness was recorded while his cross-examination was reserved due to absence of the counsel for the defendant. It was submitted that despite many notices the commissioner never appeared before the Court. Learned counsel submitted that the commissioner has neither submitted his report nor sent any intimation to the court, therefore, there was no justification in dismissing the suit of the appellant under Order XVII, Rule 3, C.P.C. The learned counsel submitted that the appellant may be allowed to produce evidence. He prayed .that the judgments of the two courts below may be set aside and the suit may be restored to its original position.
4.The learned counsel for the respondent fully supported the impugned judgments and stated that the suit was filed in 1985 but since then it is pending due to avoidance of the plaintiff. He referred to the case diary and stated that on numerous occasions the plaintiff remained absent. So far submission regarding commissioner is concerned, the learned counsel submitted that these are new pleas which cannot be taken at this stage as the same were not taken before the courts below. Learned counsel further submitted that there are concurrent findings against the appellant, and, therefore, no interference is Called from this Court.
5.I have heard the learned counsel for the parties and, have perused the record.
6.The suit of the appellant was dismissed by the trial Court in the following manner:-- "The perusal of record shows that matter was already fixed for evidence of plaintiff's side. On 16.9.2005 the suit was dismissed in non-prosecution and against the non-prosecution order the plaintiff' had filed an application under Order IX, Rule 9, C.P.C., which after hearing learned counsel for parties had dismissed the application under Order IX Rule 9, C.P.C. Thereafter the plaintiff had preferred an appeal before the Hon'ble District Judge, Karachi Central which was allowed by the Hon'ble 3rd Additional District Judge, Karachi Central vide order dated 20.07.2005 and directed to this court to conclude the proceedings expeditiously. As a matter of fact that plaintiffs after remand of the present suit (sic). Since the matter is pending for want of evidence of the plaintiff side but the plaintiffs' have failed to abide by the directions of Hon'ble Appellate Court and the position remained same as earlier. The perusal of record, it transpires that plaintiff mostly remained absent from this court for recording evidence. The perusal of record further reveals that on 03.12.2007, 12.12.2007, 21.1.2008, 09.02.2008, 27.02.2008 and 08.03.2008 the plaintiffs were called absent no application or intimation received on their behalf and matter was adjourned for today i.e. 25.03.2008. Today is also same position the plaintiffs and their counsel called absent since morning and no any application of (or) intimation is received on their behalf This conduct on the part of the plaintiffs clearly shows that they have no interest to proceed the matter but only wants to linger on the matter for such indefinite period, which cannot be allowed as law does not favour to the invigilent person and therefore 1 have no alternate but to decide the matter under Order XVII, Rule 3, C.P.C."
7.The Appellate Court discussed the controversy in the following words:-- "The record shows that after transfer of the above suit the learned trial Court issued Court Motion Notice to the appellants and court motion notice was received by one Aslam in the office of learned counsel for the appellants and on the report of the bailiff the service was held good upon the appellants vide order dated 28.7.2003 and due to non-appearance of the appellants the suit of the appellants was dismissed on 16.9.2003 for non-prosecution. On 28.4.2005 the appellants filed application (under) Order XI Rule 9, C.P.C. for restoration of the suit to its original stage but after hearing the same was dismissed vide order dated 17.5.2005. Thereafter the appellants preferred C.M.A. before the Hon'ble District and Sessions Judge, Karachi Central which was numbered as 14/2005 and same was transferred to the learned IIIrd Additional District Judge, Karachi Central. The learned IIIrd Additional District Judge, Karachi Central vide Order dated 20.7.2005 set aside both the orders dated 16.9.2003 and 17.5.2005 and restored the suit to its original stage and directed the trial Court to conclude the proceedings expeditiously. The record also shows that after remand of the case the learned trial Court fixed the matter for appellants evidence and given several opportunities for recording the evidence but in spite of direction of the learned IIIrd Additional District Judge, Karachi Central the appellants failed to appear before trial Court for recording their evidence since 3.12.2007. The conduct of the appellants show that they have no interest to proceed with the matter but only wants to linger on the matter for such indefinite period, therefore, the learned trial Court having no alternate exercised its powers vested under the provision (of) Order XVII Rule 3 C.P.C. and dismissed the suit of the appellants.
8.In view of the above, the appellate Court was of the view that the judgment and decree of the trial Court was sustainable in law and accordingly dismissed the appeal.
9. A perusal of the diary sheet shows that the plaintiff was constantly absent and never bothered to attend the Court. More particularly, when the suit was restored and the dismissal orders were set aside, the plaintiff should have been vigilant in pursuing the matter. However, again he allowed the suit to be dismissed under Order XVII, Rule 3, C.P.C. due to his lethargic attitude. It is very unfortunate that such type of suits are allowed to linger on for decades.
10.So far as the submissions regarding commissioner is concerned, the same were not raised before the Courts below and were taken for the first time before this Court. I am not inclined to entertain the same at this stage.
11. A perusal of the above shows that the two Courts below have concurrently held that the plaintiff was not vigilant in pursuing his suit, on the contrary, he was avoiding to appear in the Court to record evidence as many opportunities were provided to him to produce his evidence but he failed to appear before the Court. Eventually the trial Court was of the view that the plaintiff is not interested in pursuing his case and dismissed his suit vide judgment dated 25.3.2008. The appellate court concurred with the trial Court and dismissed the appeal against the judgment dated 25.3.2008 vide the impugned judgment.
12. There is no cavil with the proposition that nobody should be condemned unheard. However, in case a plaintiff is not coming forward to produce his evidence, a civil court cannot secure his presence by coercive measures. It is for the plaintiff to plead his case. In case he himself is not interested in proceeding with the matter, the only option left with the trial Court is to take appropriate step under the law.
13. I do not find any error or illegality in the impugned orders calling for interference by this Court.
Accordingly, this second appeal is dismissed and the judgments of the Courts below are maintained.