This Constitutional petition is directed against the order dated 24.1.2017 passed by learned Senior Civil Judge/ Guardian Judge, Layyah whereby petition for custody of Muhammad Haris, minor filed by the petitioner (father of minor) was dismissed and the judgment dated 12.6.2017 passed by learned Addl. District Judge, Layyah whereby appeal filed by the petitioner was dismissed.
2. Factual matrix of the case is that the petitioner solemnized marriage with the respondent in the year 2011. Out of this wedlock Muhammad Haris, minor son of thte petitioner was born. The spouses could not live together under one roof and the differences led to the respondent to file suit for dissolution of marriage against the petitioner. The petitioner filed a petition for custody of his son Muhamad Haris which was resisted by the respondent by way of written reply. Out of divergent pleadings of the parties, on 9.3.2015 learned trial Court framed as many as three Issues including the following one: "Is it in the interest and welfare of the minor to hand over his custdoy to the petitioner?OP A.
3. After framing of issues the matter rema ined hanging fire for more than 25 month s and in spite of as many as 37 adjournments the petitioner did not bother to produce even a single witness. Interim order-sheet of learned Guardian Court appended with this petition depicts that last and absolute final opportunities were also granted to the petitioner but of no avail. Persistent conduct of the petitioner for not producing witnesses led the learned trial court to infer that he was not interested in pursing the matter with seriousness and appeared to have filed the petition just to harass the respondent. Consequently , right of the petitioner to adduce evidence was closed by the Court by initiating proceedings under Order XVII Rule 3 C.P.C. and after perusal of available record, learned Court proceeded to dismiss the petition for custody of the minor . Feeling dissatisfied of the said order the petitioner filed an appeal which too met the same fate as noted above. Hence this petition.
4. Learned counsel for the petitioner has been heard at length and record appende d with this petition perused with his assistance.
5. It is an admitted fact that issues were framed on 9.3.2015 and thereafter the petitioner was directed to produce his evidence. He did not produce a single witness. During pendency of his petitio n for custody , on 13.6.2015 he filed a miscellaneous application for visitation of minor in which arguments could not be advanced till 11.2.2016 on which date also learned trial Court directed the petitioner to produce evidence. On subsequent dates of hearing stretching over a period of two years and one month, the petitioner did not bother to produce evidence in support of his version despite availing of final opportunities. In order to cope with such a situation and to maintain discipline in adjudication of civil litigation, Order XVII Rule 3 C.P .C. has been framed which runs as under: "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."
6. Although the rule is not mandatory as is evident from its language and matter has been left to the discretion of the court but where the act/conduct of the party appears to be contumacious/ negligent one and it fails to produce its evidence in spite of grant of time, in order to maintain discipline in civil cases court has been bestowed with the power to decide the suit forthwith. This empowerment to my mind makes the provision penal in nature and should, therefore, be strictly construed and appli ed by curtailing discretionary powers. In order to better understand the intent of legislature and to make more clarity in mind reference may be made to Syed Tahir Hussain Mehmoodi and others v . Agha Syed Liaqat Ali and others (2014 SCMR 637 ) wherein Hon'ble Supreme Court has held as under: "Notwithstanding our refraining to interfere in the matter on account of the above, we are of the candid view that provisions of Order XVII, Rule 3, C.P.C. are penal in nature and as per the settled law such provisions should be strictly construed and applied, therefore, once the case of a delinquent litigant squarely falls within the purview and mischief of the law (ibid) then neither any concession should be shown to such litigant nor a lenient view favouring him should be resorted to; this should not even be permissibly done on the touchstone of exercise of discretionary power of the court and/or on the approach that technicalities of procedure should not be allowed to impede the interest of justice, and/or that the litigants should not be knocked out on technical grounds, and that adversarial lis should be settled on merits. If such approach is liberally followed and resorted to there shall be no discipline in the adjudication of the civil litigation and the delinquent whose case though is squarely hit and covered by the penal provisions of Order XVII, Rule 3, C.P.C. would be given a chance to his advantage and to the disadvantage of his opposing side. This is not the spirit of the law at all. It may not be out of place to mention here that to apply and to adhere to law is not a mere technicality, rather it is duty cast upon the court as per Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 to do so. Thus where Order XVII, Rule 3, C.P.C. is attracted, the court has no option except to take action in accord therewith."
In the present case the petitioner failed to produce his evidence despite repeated opportunities including last and absolute final opportunities, as such the learned trial Court has rightly observed that pendency of application for custody of minor was nothing but mere harassment to the respondent. As calculated by this Court, in the light of assistance rendered by learned counsel for the petitioner , despite availing 23 clear opportunities the petitioner did not produce his evidence. Only on one occasion the petitioner produced his evidence but even on the said date he sought adjournment. As such the petition er himself has caused inordinate delay in conclusion of trial. Therefore, the learned guardian court has properly exercised discretion vested in it which cannot be considered arbitrary , capricious, harsh or without application of judicious mind. Learned counsel has not been able to show any illegality or irregularity in the impugned orders calling for interference by this Court in its constitutional jurisdiction.
Consequently , I find no merits in this petition which is dismissed in limine.
7. Before parting with this order, it may be observed that under the law on a fresh cause of action the petitioner is at liberty to approach the learned Guardian Court for the relief sought earlier.