This regular first appeal under section 96 read with Order 41 of the Code of Civil Procedure, 1908,
(CPC) has been preferred against the order dated 18.11.2024 passed by learned Civil Judge, Lahore, whereby suit filed by the appellant/plaintiff was dismissed under Order XVII rule 3 of CPC.
2. The facts culminating into the impugned order and decree emanate from the suit for recovery of damages of Rs.6,70,00,000/- filed by the appellant against the respondents/defendants in which notices were issued to them. The respondents/ defendants entered appearance and contested the suit by filing their written statement while raising certain legal as well as factual objections. Out of divergent pleadings of the parties, the following issues were framed on 28.4.2023:-
1. Whether the plaintiff is entitled for the decree of recovery of damages of Rs.670,00,000/- against the defendants?OPP.
2. Whether suit of the plaintiff is false, frivolous and baseless and liable to be dismissed with special costs under Section 35-A CPC?OPD.
3. Relief.
The parties were directed to produce their respective evidence. The appellant could not produce evidence before the trial court despite the various opportunities, warnings and cost, thereafter, her suit was dismissed under Order XVII rule 3 CPC vide order dated 18.11.2024 (impugned order). The appellant preferred an appeal before District Judge, Lahore, assailing the impugned order but the same was dismissed as withdrawn vide order dated 14.1.2025 in order to avail proper remedy before appropriate forum as value of the suit exceeds from the jurisdiction of the District Court.
Hence, the instant appeal.
3. We have heard the arguments of learned counsel for the parties and perused the available record as well as have minutely gone through the impugned order.
4. Precisely, the above mentioned issues were framed by the trial court on 28.4.2023 and lists of witnesses were submitted on 05.5.2023 from both parties and the case was adjourned for evidence of the appellant on 06.6.2023. Thereafter, the case kept on adjourning on various reasons including strike of lawyers and leave of learned Presiding Officer. On 12.6.2024 at the request of the appellant the case was adjourned for evidence for 15.7.2024. On the said date, evidence of the appellant was not produced and at her request the case was adjourned for recording evidence of appellant with the specific assertion that if evidence would not be produced on the next date of hearing, right to produce evidence will be closed. On the next date i.e. 10.9.2024, the appellant being in attendance again requested for adjournment to produce evidence and in the interest of justice last and final opportunity was granted with the warning that if evidence would not be produced her right to produce evidence will be struck off while securing the signatures and thumb impression of the appellant on the order sheet. Despite of being warned previously she did not produce any evidence on the consecutive dates of hearing i.e. 08.10.2024 and 28.10.2024. The learned counsel for the respondents/defendants raised objection but the trial court granted last opportunity on 28.10.2024 to the appellant/plaintiff to produce evidence by imposing cost of Rs.500/- with the clear-cut warning and specific order that if evidence would not be produced on the next date her right to produce evidence will be closed. On 18.11.2024, the appellant again prayed for an adjournment to produce evidence which was vehemently opposed by learned counsel for the respondents/defendants and as a result thereof suit of the appellant was dismissed under Order XVII Rule 3 CPC through impugned order.
5. Succinctly, the case has been adjourning for recording evidence of the appellant till 18.11.2024 for more than 1 1/2 year after framing of issues. The appellant availed sufficient opportunities for producing and recording of her evidence but she remained unable to do the same. The trial court granted ample opportunities even absolute last and final opportunity was granted to her with the warning i.e. if evidence would not be produced her right to produce evidence will be closed and before passing impugned order cost was imposed in presence of the appellant with the warning supra. During this span statement of even a single witness could not be recorded. No other option was left with the trial court except to invoke the penal jurisdiction of Order XVII rule 3 CPC which is reproduced for ready reference as under:-
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 such default, proceed to decide the suit forthwith."
From the bare perusal of above facts and referred provisions of law it becomes crystal clear that the trial court ordered a specific warning and imposition of cost therefore once the final opportunity was granted along with a clear warning, the court must enforce its order strictly and without exception. The August Supreme Court of Pakistan in a case reported as 'Moon Enterpriser CNG Station, Rawalpindi Vs. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another" (2020 SCMR 300) held as under:- "6.---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. The order to close the right to produce evidence must automatically follow failure to produce evidence despite last opportunity coupled with a warning."
6. Matter can be examined from another angle, the litigation remained pending before the trial court for almost more than three years and the other party kept on facing the agony of the trial for such a long period. Reliance in this regard is placed on the case law reported as 'Duniya Gul and another Vs. Niaz Muhammad and others' (PLD 2024 Supreme Court 672) wherein it has been held as under:- "7.---In our view, it is imperative for the court to exercise vigilance and refrain from granting adjournments so liberally and without any compelling reasons. Such a cautious approach is necessary to prevent abuse of the legal system, ensure a fair and timely resolution of cases, and optimize the use of judicial resources. In this regard, the Code of Civil Procedure, 1908 ("C.P.C.") under Order AVII, Rule 3, empowers the court to proceed to decide the suit forthwith if a party, to whom time has been granted, fails to produce evidence, secure the attendance of witnesses, or perform any other act necessary for the further progress of the suit. For convenience, the said Rule 3 is reproduced hereunder 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.
"8.--Recently, the above provision of law was thoroughly considered and deliberated upon by this Court in the case of Moon Enterpriser CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi, and another (2020 SCMR 300). The Court, after considering the case law available on the subject, held that the following two conditions must be satisfied before applying the above penal provision to close the right of a party to produce evidence: i. that time must have been granted at the request of a party to the suit to adduce evidence 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. that the same party on the date which was fixed as the last opportunity fails to produce its evidence.
9...
10. It is relevant to observe here that when the last opportunity to produce evidence is granted and the party has been duly warned of the consequences, the court must execute its order consistently and strongly, without exceptions. Such a measure would not only realign the system and reaffirm the authority of the law but also curb the trend of seeking multiple adjournments on frivolous grounds, which serve to needlessly prolong and delay proceedings without valid or legitimate justification. Moreover, when the court issues an order providing the final chance, it not only issues a judicial order but also extends a commitment to the parties that no further adjournments will be permitted for any reason. The court must stand by its order and uphold its commitment, leaving no room or option for any alternative action.
7. The appellant could not produce her evidence before the trial court despite availing reasonable opportunities. The lis was prolonged on one pretext or the other despite clear orders of the trial court. In such manner the cases must be decided promptly which causes heavy backlogs of controversies between the parties, otherwise this amounts to abuse of legal system and a hurdle in fair and timely disposal of cases. The August Supreme Court of Pakistan in case reported as Lutfullah Virk Vs. Muhammad Aslam Sheikh (PLD 2024 Supreme Court 887) observed as under:- "7.---It is unfortunate that adjournments have become a plague for the country's justice system.
On 31 December 2023, a net pendency of 2.26 million cases was reported in the country and 1.86 million of the cases out of the total pendency, which is around 82%, are pending adjudication before the District Judiciary and despite this mammoth pendency, which undoubtedly has only grown since 31 December 2023, the adjournment culture continues unabated - which robs litigants of the right to speedy justice and further exacerbates the inefficient judicial system crisis.
The failure of the courts to deal promptly with backlogs involves very human consequences: controversies are prolonged; hard feelings emphasized; families suffer privation from their inability to obtain relief. As a result, people seeking relief become embittered and hate the courts and the law because the legal profession has not lived up to its responsibilities in a field where its responsibilities are primary and almost exclusive."
"8 There is a prevalent and concerning trend of frequent adjournment requests in lower courts, which amounts to an abuse of the process of the court. This practice has significantly contributed to a substantial backlog of litigation in the lower judiciary. It is imperative that we actively discourage this behavior to ensure the prompt delivery of justice to the citizens of Pakistan. By curbing the routine use of adjournments, we can expedite legal proceedings, alleviate the burden on the lower judiciary, and ultimately enhance the efficiency of the judicial system. This, in turn, will contribute to a more timely and effective resolution of legal matters, promoting access to justice for all."
As a sequel of above discussion and seeking guidance from the Judgments supra, we are of the view that case of the appellant squarely falls within the mischief of provision of Order XVII rule 3 CPC and appellant's suit was rightly dismissed by the trial court after affording reasonable and justified opportunities to produce her evidence.
8. Instant appeal being devoid of any force and substance stands dismissedin limine. No order as to costs.