SAMAN RAFAT IMTIAZ, J. Through this instant Regular First Appeal, the Appellant (Amjad Ghafoor Khan) has assailed the Judgment and Decree dated 26.09.2019 ("Impugned Judgment & Decree ") passed by the Court of the learned Additional District Judge-W est, Islamabad, whereby the suit of the Appellant was dismissed.
2. The facts in brief, as per Memo of Appeal, are that on 23.09.2017, the Appellant filed a suit under Order XXXVII of the Code of Civil Procedure, 1908 ("CPC") against the Respondent (Waseem Ahmed Malik) for the recovery of amount of Rs.15,500,000/- in respect of dishonored cheques along with liquidated damages and interest at the rate of KIBOR from the date payment became due till realization . It was alleged in the suit that the Respondent requested the Appellant for a loan. Due to mutual trust between the parties and in view of the fact that the Respondent was employed with a bank, the Appellant loaned a total amount of Rs.16.5 million to the Respondent which was disbursed to the Respondent and his nominated third parties on different dates in cash and through bank transactions. As per agreement between the parties the Respondent was obligated to return the amount by the beginning of 2015. When the Appellant started demanding the return of his amount, the Respondent started delaying payment. Finally, in the beginning of the year 2016 payment of 1 million rupees was made to the Appellant by the Respondent.
3. The Respondent issued cheques Nos. 2051033 and 2051034, dated 13.04.2 016 and 20.04.2016 drawn on United Bank Limited in the amounts of 5,500,000/- and 10,000,000/- respectively to Appellant. Respondent undertook to pay the remaining amount within one month i.e. till end of March, 2016, however , in case of failure thereof the said cheques were given. When Appellant presented the said cheques in the bank, the same were dishonored due to insuf ficiency of funds and were dishonoured due to the fact that Respondent had either connived with his bank for getting such report or had dishonestly not incorporated his actual signatures at the time of issuance of cheque. Thereafter , Appellant lodged FIR No. 73 dated 16-03-2017 Offence U/S 489-F PPC in PS Shalimar , Islamabad and filed the suit under Order XXXVII of CPC.
4. The Respondent put in his appearance and filed application for leave to appear and defend the suit which was allowed vide order dated 08.11.2018. Respondent filed his written statement and raised legal as well as factual objections. Out of the divergent pleadings , issues were framed on 12.04.2019. However , the Appellant' s evidence was closed under Order XVII, Rule 3 of CPC and the suit of the Appellant was dismissed by the learned Judge vide the Impugned Judgment & Decree. Hence, the instant Appeal.
5. Learned counsel for the Appellant, inter alia, contended that the Impugned Judgment & Decree, thereby closing the right of the Appellant to produce evidence and dismissing the suit, is an untenable and unreasoned Order; that on the date i.e. 26.09.2019 the Appellant was unable to walk due to a toe nail injury and was also prevented from appearing before the learned Additional District Judge for the fact that his daughter underwent a major eye operation and was admitted in the hospital on the very date i.e. 26.09.2019; that the daughter of the Appellant who is a minor had been under treatment prior to 26.09.2019 and thus he was prevente d therefrom even to contact his other witnesses; that the learned Additional District Judge, only referred to the certificate provided from a private Doctor , however , did not disregard the same or dispute the authenticity thereof; that on 26.09.2019 the counsel of the Appellant was also busy before the Honorable Lahore High Court, Lahore while appearing before the Honourable Bench-IV at Lahore in W.P. No.20963/2019 titled as Alpha Labs Vs. DRAP , the learned Additional District Judge disregarded the request as well as adjournment application filed by associate counsel on behalf of the Appellant; that on 26.09.2019 the Islamabad Bar Association had announced 'Strike' regarding the Kashmir issue, through this Notice the Bar Association requested that the Judges should not have passed any adverse orders against the lawyers in their cases. He argued that the non-appearance of the Appellant is not deliberate nor intentional but due to ailment of the Appellant That this is well settled principle of law by Apex Courts that the matters/suits should be decided on merits rather on technicalities, therefore, Impug ned Judgment & Decree should be set aside and the suit of the Appellant should be decided on merits; Learned counsel for the Appellant relied on Ghulam Rasool Vs. Rai Ghulam Mustafa, 1993 SCMR 2026 , Pakistan Telecommunication Company Limited
(PTCL) Vs. Mst. Naima Ayub, 2013 CLC 1191 and Muhammad Aslam Vs. Nazir Ahmed, 2008 SCMR 942.
Learned counsel prayed that instant Appeal be accepted and set aside the Impugned Judgment & Decree dated.
26.09.2019 and the suit of the Appellant may, therefore, remanded back for decision on merits, in the best of interest of justice.
6. Conversely , learned counsel for Respondent supported the Impugned Judgment and Decree while terming it just and legal which as per his stance has been passed by the learned Additio nal District Judge after proper appreciation of facts and relevant law .
7. Heard the parties and perused the record.
8. Examination of the record reveals that after framing of issues on 12.04.2019, the matter was fixed on 23.04.2019 for Appellant/Plaintif f's evidence but due to unavailability of the Plaintif f's/Appellant' s evidence matter was fixed for such purpose on 06.05.2019. On such date, the Appellant/Plaintif f again requested an adjournment and the matter was put off for his evidence till 27.05.2019. On 27-05-2019, another request was made by the Appellant/Plaintif f, which was allowed as a last and final opportunity for production of evidence and the case was fixed for 20.06.2019.
On the said date Appellant/Plaintif f's witness was not present and a request for adjournment was made by the Appellant/Plaintif f's counsel which was allowed and absolute final opportunity for production of evidence was granted yet again subject to payment of fine of Rs. 500/-. Thereafter , on 16.07.2019 again Plaintif f's/ Appellant' s counsel failed to put in appearance and matter was adjourned to 16.09.2019 subject to payment of fine of Rs.1,000/- and it was made clear that in case of non appearance of Plaintif f's couns el or failure to produce evidence Plaintif f's/Appellant' s right of evidence shall be struck off. However , on 16.09.2019 due to lawyers' strike matter was adjourned till 26.09.2019. Notwithstand ing the foregoing, on the said date neither learned Counsel for Plaintif f/Appellant nor Plaintif f's/Appellant' s evidence was available, however , a written request for adjournment on medical ground was made on behalf of Plaintif f's counsel which was declined by the learned Court and Plaintif f's right to produce evidence was closed under Order XVII Rule 3 CPC and Impugned Judgment & Decree was passed for failure to prove claim.
9. It is evident and an admitted fact that the Appellant was given multiple chances to produce evidence between 12.04.2019 when issues were framed till the passage of the Impugned Judgment & Decree by the learned Additional District Judge on 26.09.2019. It is also admitted that last and final opportunity was granted repeatedly on 20.06.2019 and 16.09.2019.
10. The conditions required to be met in order to apply Order XVII, Rule 3 C.P.C., have been discussed in the case of Moon Enterprises CNG Station, Rawalpindi versus Sui Northern Gas Pipelines Pvt. Ltd. Through General Manager , Rawalpindi and another , 2020 SCMR 300 , wherein it was held as follows: "4. We have heard the learned counsel and perused the record. It is unfortunate that the prevailing pattern in the conduct of litigation in the Lower Courts of Pakistan is heavily permeated with adjournments which stretch, what would otherwise be a quick trial, into a lengthy, expensive time-consuming and frustrating process both for the litigant and the judicial system. While some adjournments are the consequences of force majeure, most are not. To cater for the latter and to discourage misuse, the C.P.C. through Order XVII, Rule 3 has provided the Court with a course of action that checks such abuse. We now advert to Order XVII, Rule 3, C.P.C., which is reproduced below for ease of reference:-
3. 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 each default, proceed to decide the suit forthwith.
5. This court has through a plethora of judgments, settled the law on the aforementioned provision. In Maulvi Abdul Aziz Khan v . Mst. Shah Jahan Begum and 2 others ( PLD 1971 SC 434 ) this court held that: "It will be seen that this rule applies to a case where time has been granted to a party at his instance, to produce evidence, or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted."
In the case of Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others (PLD 2003 SC 180) it was held that failure to produce evidence despite a last opportunity being granted would attract Order XVII, Rule 3, C.P.C. More recently , it was held in the case of Rana Tanveer Khan v. Naseer-Ud-Din and others (2015 SCMR 1401 ) that:
2. ...Be that as it may, once the case is fixed by the Court for recording the evidence of the party, it is the direction of the court to do the needful, and the party has the obligation to adduce evidence without there being any fresh direction by the court, however, where the party makes a request for adjourning the matter to a further date(s) for the purposes of adducing evidence and if it fails to do so, for such date(s), the provisions of Order XVII, Rule 3, C.P.C. can attract, especially in the circumstances when adequate opportunities on the request of the party has been availed and caution is also issued on one of such date(s), as being the last opportunity(ies).
6. A bare reading of Order XVII, Rule 3, C.P.C. and case law cited above clearly shows that for Order XVII, Rule 3, C.P.C. to apply and the right of a party to produce evidence to be closed, the following conditions must have been met: i. at the request of a party to the suit for the purpose of adducing evidence, time must have been granted with a specific warning that said opportunity will be the last and failure to adduce evidence would lead to closure of the right to produce evidence; and ii. the same party on the date which was fixed as last opportunity fails to produce its evidence.
In our view it is important for the purpose of maintaining the confidence of the litigants in the court systems and the presiding officers that where last opportunity to produce evidence is granted and the party has been warned of the consequences, the court must enforce its order unfailingly and unscrupulously without exception. Such order would in our opinion not only put the system back on track and reaffirm the majesty of the law but also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reason. Where the Court has passed an order granting the last opportunity, it has not only passed a judicial order but also made a promise to the parties to the lis that no further adjournments will be granted for any reason. The Court must enforce its order and honour its promise. There is absolutely no room or choice to do anything else. The order to close the right to produce evidence must automatically follow failure to produce evidence despite last opportunity coupled with a warning. The trend of granting (Akhri Mouqa) then (Qatai Akhri Mouqa) and then (Qatai Qatai Akhri Mouqa) make a mockery of the provisions of law and those responsible to interpret and implement it. Such practices must be discontinued, forthwith." [Emphasis added].
11. In the instant case, the record reflects that time was granted on 20.06.2019 and 16.09.2019 for the purpose of adducing evidence, at the request of the Petitioner , with a specific warning that said opportunity will be the last and final and it was the Petitioner who failed to produce evidence on the respective next dates.
12. The case laws relied upon by the Appellant are distinguishable as far as in the case reported as Ghulam Rasool Vs. Rai Ghulam Mustafa, 1993 SCMR 2026, is concerned the Trial Court declined to receive the appellant's affidavit-in-the evidence on the ground that he should appear in the witness box and as such closed his evidence and then dismissed the suit for want of evidence. In the case of Muhammad Aslam Vs. Nazir Ahmed, 2008 SCMR 942, the Honourable Supreme Court held that the Trial Court despite non production of witnesses by the plaintiff should have asked the plaintiff to come in the witness box as he was present instead of dismissing the suit forthwith. Whereas in the case of Pakistan Telecommunication Company Limited (PTCL)
Vs. Mst. Naima Ayub, 2013 CLC 1191, the Trial Court while closing the evidence of the plaintiff straight away proceeded to dismiss the suit without pronouncing judgment and giving issue wise findings. In the instant case, however, the Appellant was not present before the Trial Court on the date that the evidence was closed nor was he seeking to file affidavit-in-evidence. Moreover, the Additional Judge after closing the evidence of the Appellant proceeded to pass the Impugned Judgment & Decree in which findings on the issues framed have been recorded.
13. Suffice it to say that we agree with the view taken by the learned Additional District Judge. In this case the necessary conditions for Order XVII, Rule 3, C.P.C., to apply were fully met and the learned Additional District Judge correctly used its powers to close the side of the Petitioner to produce evidence and to pass the Impugned Judgment and Decree on account of failure to prove his claim. The learned counsel for the Petitioner has not been able to identify any infirmity , error or flaw in the Impugned Judgments and Decrees.
14. For the reasons recorded above, we do not find any merit in the instant RF A, which is accordingly dismissed.