' This regular second appeal calls in question judgment and decree, dated 12-5-1975 passed by the learned Additional District Judge, Lahore.
2. Briefly the facts of the case are that the respondent-plaintiff Mst. Aziz Begum wife of Syed Dabir All resident of 6, Begum Road, Lahore instituted a suit for damages for malicious prosecution against the appellant-defendant Shafqat Ullah Khan resident of 46, Ahmad Park, Lahore, in the Court of Mr. Ikramul Haq Civil Judge, Lahore, on 14-2-1974.
' The learned Civil Judge by his order, dated 20-6-1974 struck off the defence of the appellant- defendant under Order XVII, rule 3 C.P.C. on account of his having not produced evidence despite that being the last opportunity afforded to him.
' On the same date the suit of the respondent-plaintiff was decreed against the appellant- defendant with costs.
' Feeling aggrieved the appellant-defendant preferred an appeal to the learned Additional District Judge, Lahore who by his judgment, dated 12-5-1975 dismissed the appeal with costs. Hence the present second appeal by the appellant-defendant.
3. The learned counsel for the appellant contended that the learned Civil Judge erred in law in striking off the defence of the appellant-defendant under Order XVII, rule 3, C.P.C. inasmuch as the case was not covered by the said provision. He argued that on an earlier date, the appellant- defendant had deposited process-fee, diet-money etc. for summoning the witnesses which had not been consumed and it was therefore no fault of the appellant-defendant not to have produced the witnesses as no summons for the witnesses were issued by the Court itself. In support of his contention the learned counsel placed reliance on Messrs Crescent Films Lahore v. Messrs Shah Noor Films, Lahore and 8 others reported as PLD 1978 Lah.
721.
' The only other contention of the learned counsel for the appellant-defendant was that the learned trial Court while passing the decree did not advert to the merits of the case although in a case for damages for malicious prosecution it was an essential requirement that the respondent- plaintiff should have proved proper cause and malice before a decree could be passed in her favour. Abdul Shakoor v. Messrs Lipton & Co. reported as AIR 1924 Lah. 1 was referred in support of the above contention.
4. On the contrary, the learned counsel for the respondent-plaintiff submitted that it was a fit case for application of Order XVII, rule 3 C.P.C. as the appellant-defendant had been using dilatory tactics in keeping the decision in the suit in abeyance and before the date his defence was struck off and a decree passed he had not taken the necessary steps for summoning the witnesses despite opportunity having been given to him.
' The learned counsel to show that the application of Order XVII, rule 3, C.P.C. was warranted in the circumstances referred to the order-sheet of the trial Court as also to the endorsement of the Ahlmad on the application of the appellant-defendant for summoning the witnesses, which was filed on an earlier date.
' It was also urged by the learned counsel for the respondent-plaintiff that it was the obligation of the appellant-defendant to have provided draft summonses with the application for summoning the witnesses and he having not done so it shall be taken that he had not taken the necessary steps for summoning the witnesses.
' As regards the second contention raised on behalf of the appellant-defendant the learned counsel for the respondent-plaintiff submitted that it was not necessary to discuss the merits of the case and that in any case the non-discussion thereof by the trial Court has been taken care of by the lower Appellate Court which considered the facts of the case and came to the conclusion that the case of the respondent-plaintiff had been established.
5. Having given consideration to the controversy invovled I find that the contentions raised on behalf of the appellant-defendant have no force.
6. It has been correetly pointed out by the learned counsel for thel respondent-plaintiff with reference to the record that the attendant circumstances did warrant invocation of the penal provisions of Order XVII, rule 3, C.P.C. The trial Court's record shows that on 14-2-1974 the case was adjourned for evidence of the appellant-defendant to 4-4-1974 with fixation of responsibility of the appellant-defendant to produce his evidence on his own. He was also burdened with the responsibility of obtaining the summonses Dasti. The case was then adjourned from 4-4-1974 to 11- 5-1974. On 11-5-1974, the trial Court found that diet-money etc. was deposited by the appellant- defendant on 5-4-1974 whereas it should have been deposited on 14-2-1974 and, therefore, the appellant-defendant was using dilatory tactics. However, giving last opportunity in the interest of justice the case was adjourned to 20-6-1974 for evidence of the appellant-defendant to be produced on his own responsibility. It was on 20-6-1974 that the trial Court invoked Order XVII, rule 3, C.P.C. as the appellant had then also failed to produce evidence.
7. The above factors clearly go to show that case was ripe for invocation of the provisions of Order XVII, rule 3, C.P.C. and the trial Court was justified in striking off the defence of the appellant- defendant on that date.
8. Before parting with this aspect of the case it may also be observed that the appellant-defendant even on 5-4-1974 when he made an application for allowing the deposit of expenses for witnesses did not attach with the application the forms for issuing of summonses which was also a step required to be taken by the appellant-defendant. The appellant-defendant, as already observed above, had to deposit the expenses etc. by 14-2-1974 the date on which the case was adjourned to 4-4-1974 for recording evidence but instead he waited till 5-4-1974 to make an application for permission to deposit the amount and yet delayed the actual deposit till 9-4-1974 although the case was fixed for evidence for 4-4-1974 and it was per chance that the Presiding Officer was on leave on that date that the case was adjourned to 11-5-1974. In any case there is a note of the Ahlmad on the application of the appellant-defendant for deposit of the expenses that summonses for witnesses have not been annexed. This endorsement was made on 15-4-1974 on the application of the appellant-defendant which appears at page 61 of the lower Court's file.
9. The learned counsel for the appellant-defendant has not been able to controvert this endorsement in any manner which therefore establishes that the appellant had not taken appropriate steps which he was under an obligation to take for summoning his witnesses. The invocation of Order XVII, rule 3, C.P.C. by the trial Court is thus wholly unexceptionable.
10. Adverting now to the second contention of the learned counsel for the appellant-defendant I suffice by observing that even though the trial Court had not adverted to the facts of the case yet the lower Appellate Court has taken into consideration all the relevant facts and has also examined the evidence on record to hold that the case of the respondent-plaintiff had been established. The following para from the judgment of the lower Appellate Court abundantly shows that the evidence on record has been appreciated by the lower Appellate Court while confirming the decree passed by the trial Court: "The parties were ordered to adduce their evidence and the respondent/plaintiff produced evidence and examined Muhammad Ilyas Khan P.W.1, Muhammad Ishaq P.W.2 and the plaintiff herself was also examined. All the witnesses corroborate with each other and they supported the contention of the plaintiff. In rebuttal no evidence was produced as the appellant/defendant has been given many opportunities to adduce the evidence, but he failed to produce the evidence."
11. The above being the position prejudice if any had been caused to the appellant-defendant by the trial Court's failure to advert to the facts stands cured by taking into consideration all the available evidence on record by the lower Appellate Court while confirming the decree of the trial Court.
12. It has neither been urged today by the learned counsel for the appellant nor is it any ground of the appellant-defendant that the lower Appellate Court has in any manner ignored the evidence on record.
13. In view of the foregoing discussion I find no merit in this appeal which is accordingly dismissed with costs.