This is an appeal against the judgment and decree passed by the learned District Judge, Muzaffarabad, dated 22-1-1985 whereby the learned District Judge/First Appellate Court, Muzaffarabad confirmed the order and the decree of the trial Court, dated 6-5-1984.
2. On the two previous dates i.e. 23-6-1985 and 3-10-1985, Ch. Muhammad Hussain Advocate was present on behalf of the respondents. The case was fixed for arguments for today but the learned counsel for the respondents. Ch. Muhammad Hussain Advocate, is not present today, therefore, ex parte proceedings are ordered against the respondents.
3. This appeal arises out of the following facts:- (a)That Khawaja Ghulam Qadir instituted a declaratory suit with consequential relief and permanent injunction as regards to the land measuring 9 Kanals and 2 Marlas under Survey Nos 333 and 815 situate in village Jeeng Tehsil Muzaffarabad on 5 -6-1979 before the learned Sub- Judge, Muzaffarabad. The defendants resisted the suit and 7 issues were framed by the learned trial Court on 6-6-1981. The plaintiff was asked to adduce his evidence first;
(b) The plaintiff sought the assistance of the Court that some witnesses should be summoned through the Court. The Court permitted the plaintiff to deposit the process fee and the expenses of certain witnesses but those witnesses did not appear before the trial Court and the learned trial Court ordered the plaintiff to produce his evidence on his own responsibility. The plaintiff again sought the assistance of the Court in respect of two,, witnesses only; and
(c) On 6-5-1984, the learned Additional Sub-Judge, Muzaffarabad proceeded to dismiss the suit of the plaintiff presumably under Order XVII, rule 4 of the C.P.C. The plaintiff lodged an appeal against that judgment and decree passed by the trial Court on 6-5-1984 but failed to get a favourable verdict and decree from the first appellate Court.
4. Dissatisfied with the judgment and decree of the first appellate Court, Muzaffarabad, the plaintiff /appellant has come up in this second appeal before this Court.
5. Syed T. H. Shah Advocate, the learned counsel for the appellant, has raised the following points:- (a)that the plaintiff /appellant sought the assistance of the Court for only two witnesses of the plaintiff and that the trial Court did not summon those witnesses of the plaintiff whose expenses and process fee were deposited by the plaintiff in the Court; (b)That the provisions of Order XVII, rule 3 of the C.P.C. Are permissive and not mandatory and, therefore the trial Court has exercised its discretion arbitrarily and capriciously because, due to this impugned order of the trial Court, the plaintiff has been deprived of his legal right of getting the assistance of the Court for summoning some of his witnesses; and (c)That the trial Court has misdirected itself in dismissing the suit of the plaintiff without saying anything about the merits of the case.
He has vehemently argued that an order passed under Order XVII, rule 3 of the C.P.C. Should be on merits and based upon the pleadings of the parties and record available before the Court. He has argued that the learned Sub-Judge. Has not said even a single word about the merits of the case.
In this connection PLD 1963 Azad J & K 18 has been cited by the learned counsel for the appellant Mr. T.H. Shah Advocate.
6. I have heard the learned counsel for the appellant and have with the assistance of Syed Tassadiq Hussain Shah Advocate gone through the record of the case.
7. It is the settled law that even a decision under Order XVII, rule 3 of the C . P. C . Should be on merits and based upon the record available in a case. No doubt in this case, not a single witness of the plaintiff has been examined but still the pleadings of the Court and some revenue record was available before the trial Court which was not adverted to while passing the impugned judgment and the decree. Dated 6-5-1984. Even the plaintiff himself was not given any opportunity to appear as own witness in the case.
8. I have seen the authority Jamad Ali Khan v. Muhammad Aslam and others PLD 1963 Azad J & K 18 decided by the learned Muhammad Sharif, J. (now retired C.J. Of the Azad J & K High Court).
I reproduce the relevant pages from 20 and 21 "The Rule (rule 3, Order XVID is permissive and not mandatory as is shown by the words 'the Court may' proceed to decide the suit forthwith. The stringent provisions thereof should not be applied unless the facts do not admit of the application of any other provision of the Code Where, for instance, there are no sufficient materials on record to give a proper decision, the Court should grant a further adjournment in the case. In the present case before me no evidence had yet been recorded when the order dismissing the suit under Order ' XVII, rule 3 was passed. There was no material before the Court to decide the suit forthwith on merits. I should not be understood to mean that in no case should Order XVII, rule 3 be brought into play where no evidence has been brought on the record. If a party's conduct is such that he contumaciously fails to abide by the instructions of the Court or in spite of repeated adjournments fails to produce his evidence or to deposit the process fee then of course the trial Court has no alternative but to dismiss the suit for want of proof. In the present case, the plaintiff had deposited the expenses of the witnesses and the witnesses had actually attended the Court but unfortunately the Presiding Officer was out of the headquarters. The witnesses failed to attend on the adjourned date of hearing and the plaintiff was ordered to deposit process fee for issuing warrants of the witnesses. Only one default had been made by the plaintiff and there was no evidence on record to enable the Court to decide the case forthwith. The other party could have been very well compensated by the award of costs. In the circumstances of the case an order for an adjournment on payment of costs would have been a proper use of the discretion vested in the Court rather than pass an order under Order XVII, rule 3.
Moreover the attention of the learned trial Judge is drawn towards Order XLVIII, rule 1 and Sub-rule (2). Order XLVIII, rule 1 is reproduced below:- 'Sub-rule(1).--Every process issued under this Code shall be served at the expense of the party on whose behalf it is issued unless the Court otherwise directs.'
'Sub-rule (2).--The court-fee chargeable for such service shall be paid within a time to be fixed before the process is issued.'
The trial Court should have fixed a date for the payment of the process fee. It had not fixed any date for the payment of the process fee. Even on this ground. It shall be said that the trial Court had not judicially exercised its discretion in refusing the grant of adjournment on 7-2-1961.
I accept the appeal and remand the case back to the trial Court for retrial."
9.The first appellate Court has not considered this aspect of the case and, therefore, the mere fact, that the learned District Judge has upheld the judgment and decree of the trial Court, makes no difference.
Under these circumstances, I hereby accept this appeal and set aside the impugned judgment and decree of the trial Court, dated 6-5-1984 and remand the case back to the learned trial Court to decide the case under law after summoning only two witnesses of the plaintiff whose expenses have already been deposited before the trial Court. After recording the evidence of these two witnesses, only one month's opportunity should be given to the plaintiff to produce any other evidence, if he so likes upon his own responsibility so that the law delays should be avoided.- No order as to costs.