MUHAMMAD SAJID MEHMOOD SETHI, J. ---Through instant Regular First Appeal, filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, order/judgment dated 23.07.2015, passed by learned Judge Banking Court, Bahawalpur, has been assailed, whereby suit filed by appellant was dismissed.
2. Precisely stating, facts of the case are that Appellant bank filed a suit for recovery of Rs, 1,095,531.39 before learned Banking Court, Bahawalpur, which was contested by respondents by filing application for leave to defend the suit. Initially, learned Banking Court dismissed leave application and decreed the suit in favour of appellant bank vide order dated 22.08.2006. Being aggrieved, respondents No, 4 to 6 filed two appeals before learned Division Bench of this Court, which were allowed vide single Judgment dated 09.04.2012, thereby remanding the case to learned Banking Court, with a direction to decide leave application afresh, after taking into consideration all the material available. After remand, learned Banking Court allowed leave application, framed issues and called for appellant's evidence, which was not produced.
Consequently, penal provisions of Order XVII, Rule 3 of the Code of Civil Procedure, 1908 were invoked and, as a result, suit filed by appellant-bank was dismissed due to non-production of evidence, vide order/judgment dated 23.07.2015, which has been assailed through instant appeal.
3. Learned counsel for appellant submits that appellant and its counsel could not appear before learned Banking Court on the fixed date due to noting of wrong date of hearing in his diary by mistake. He further submits that absence of the counsel before learned Banking Court was not willful but due to sheer miscommunication of date of hearing. He adds that impugned order/judgment is not sustainable in the eye of law.
4. On the other hand, learned counsel for respondent's No, 4 to 6 defends the impugned order/judgment and submits that appellant-bank has failed to point out any illegality or legal infirmity in the impugned order/judgment, thus, the same is liable to be upheld under the law.
5. Arguments heard. Available record perused.
6. The impugned order/judgment is reproduced hereunder:-- "The Counsel for the defendant is present whereas nobody is present on behalf of the plaintiff. The Suit was fixed for evidence of the plaintiff with absolute last opportunity but neither the plaintiff, the counsel for the plaintiff nor witnesses of the plaintiff are present. Perusal of the record reveals that many opportunities have already been given to the plaintiff for production of his evidence but the plaintiff has not produced his evidence. The case in hand falls in the category of old cases which are to be disposed off till 31.07.2015. In the given circumstances when the plaintiff the counsel for the plaintiff and the witnesses of the plaintiff are not present today in the Court, the evidence of the plaintiff is closed and the suit is hereby dismissed due to non-production of evidence. The parties are left to bear their own cost. File be consigned to record room."
7. Perusal of impugned order/judgment shows that despite grant of absolute last opportunity, neither appellant nor its counsel appeared on 23.07.2015, as a result whereof, appellant's evidence was closed and suit was dismissed due to non-production of evidence. Plea of appellant-bank is that due to noting of wrong date of hearing in its counsel's diary by mistake, evidence could not be produced on the fixed date. In support thereof, learned counsel's diary has also been produced.
However, learned counsel for respondents has not seriously controverted the assertion of his counterpart..
8. The question for determination before this Court is whether learned Banking Court rightly applied the provisions of Order XVII, Rule 3, C.P.C. The said provisions of law are reproduced hereunder for ready reference:-- "Court may proceed notwithstanding either party fails to produce evidence, etc.-- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith."
The above provisions of law, being penal in nature, are to be strictly construed and action has to be taken only if the party acts contumaciously and despite repeated opportunities, commits any of the defaults enumerated in the said Rule. It is pertinent to point out here that the words "proceed to decide the suit forthwith" do not mean "to decide the suit forthwith" or "dismiss the suit forthwith".
Court may proceed with the suit notwithstanding either party failed to produce evidence, meaning thereby that in case of default to do a specific act by any party to the suit. next step required to be taken in the suit should be taken. Word "forthwith" means without any further adjournment yet it cannot be equated with the words "at once pronounce the judgment" as used in Order XV, Rule 4, C.P.C. Reference in this regard can be made to Muhammad Asian! v. Nazir Ahmed (2008 SCPAR 942) and lsrar Ahmed Afzal v. Haji Muhammad Azram and another (2016 M LD 1490).
9. Where the party has failed to produce evidence, the Court may close its evidence and proceed to record the evidence of the other party or decide the case on the basis of material available on record. Needless to observe here that there may be cases to which both Rules 2 and 3 of Order XVII of CPC are applicable, as for instance, where a party to whom time was granted to do any of the act mentioned in Rule 3, is absent and has also not done that particular act. In such cases, if there is material on record, the Court should proceed under Rule 3 and decide on merits, otherwise it should proceed under Rule 2. Where there is no material on record and parties to the suit or any other them fail to appear then, instead of Order XVII, Rule 3, Court should proceed under Order XVII, Rule 2, i,e, either dispose of the suit in one of the modes directed in that behalf by. Order IX, C.P.0 or make such other order as it thinks fit. Where there is material on the record, it should proceed to decide the suit under Order XVII, Rule 3.
10. In order to attract the penal provisions of Order XVII, Rule 3, C.P.C., time must be granted by the Court to party for doing certain acts, which were to produce evidence, to cause attendance of their witnesses, or to perform any other act necessary to the further progress of the suit. Time must be granted by the Court at the request of the defaulting party. If time was not granted by learned Banking Court for production of evidence at the instance of the party against whom order was required to be made, then penal provision of Order XVII, Rule 3, C.P.C. would not be applied against such 3 pa,1, though in default on next date.
11. Learned Banking Court. was of the view that appellant-bank failed to produce evidence despite availing abscise last opportunity for the purpose. Even if learned Banking Court wished to proceed under Order XVII, Rule 3, C.P C. was its duty to decide the /is on merit after going though the plaint and written statement and other material available on record, and after hearing arguments of learned counsel for the parties. Since the case has not been decided on merit, therefore, provisions of Order XVII, Rule 3, C.P.C. have wrongly been invoked. Even otherwise, contention of learned counsel for appellant-bank that due to noting of wrong date of hearing by mistake, he could not appear and produce evidence, is supported from his affidavit as well as diary, which have not been seriously opposed by learned counsel for respondents.
12. Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 mandates that rights and obligations be adjudicated through due process of law. Law favours adjudication of the cases on merits and technicalities should not be allowed to stand in the way of substantial justice.
Appellant-bank cannot be non-suited simply on technical ground. Instant appeal also discloses sufficient cause for non-production of evidence i,e, misunderstanding as to the date of hearing in the order passed by this Court" in the light of Ghulam Qasim v. Ghulam Hussain (PLD 1992 Supreme Court 577), the operative part of which is reproduced hereunder:--- "In presence of all these possibilities, the learned Judge when assuming another post about the ulterior motives of the learned counsel, with respect, perhaps ignored the afore-noted possibilities.
This Court in an identical situation confronted by a lawyer in making honest assessment about the timings regarding hearing of cases had allowed the benefits of honest miscalculation, misunderstanding mistiming or even misinformation. These human innocent failings if are permitted to be relied upon as explanations by ordinary individuals and litigants, the lawyers are also entitled to due consideration in this behalf. See Jan Muhammad v. Muhammad Asdhar (PLD 1981 SC .514 Jamai Din v. Ramzan 1982 SCM R 471 and Mst. Baigan v. Abdul Hakeem 1982 SCMR 672."
13. Even otherwise, learned Banking Court could have adjourned the matter subject to deposit of cost before taking extreme measure of closing right of evidence. The provisions, of law, regarding closing the right of evidence, require greater care on part of the Court, as it would shut out one party to defend itself and virtually it would be at the mercy of other party to do justice between the parties.
14. In view of above discussion, instant appeal is allowed and impugned order/judgment dated 23.07.2015 is set aside. The appellant-bank is granted one more opportunity of leading evidence, subject to payment of cost of Rs,10,000/- to be paid to respondents No, 4 to 6, failing which this appeal shall be deemed to have been dismissed. Parties are directed to appear before learned Banking Court on 17.04.2017. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.