1. Facts of the litigation which have given rise to this civil revision may be shortly stated as follows: On 16-2-1983, Jamal Din sold suit property consisting of 8 Kanals for Rs.60,000 to Khuda Bakhsh.
2. Sale was evidenced by a registered deed. Mst. Zainab, as heir, brought a civil suit to pre-empt the sale aforenoted. Suit was instituted on 12-2-1984, in the Court of Civil Judge, Kabirwala. In the plaint, it was alleged that the plaintiff-- pre-emptor was real daughter of the vendor and had superior right of pre-emption. Price paid for the suit property was disputed by her and it was claimed that sale had taken place for Rs.20,000 only. Vendee---defendant contested the suit, submitted his defence and pleaded that plaintiff was estopped to bring the suit for pre-emption; that the suit was 'Benami' and collusive; that the valuation of the suit was not correctly assessed and court-fee paid was deficient; that the defendant was entitled to expenses incurred by him on the sale; that improvements were made on the suit property and in case of decree, defendant wa-- entitled to compensation. On merits, it was pleaded that suit property had been purchased for Rs.60,000.
3. Superior right was also denied and it was averred that contesting defendant was co-sharer, Khawetdar and tenant of the suit property. On 8-7-1984, learned Judge formulated following issues for trial of the suit: (1)Whether the plaintiff is estopped by his words and conduct to bring the suit? O.P.D.
4. (2)Whether the suit is collusive and Benami? If so, its effect? O.P.D.
5. (3)Whether -the suit has been wrongly valued for the purposes of court-fee and jurisdiction? If so, its effect and correct valuation? O.P.D.
6. (4)Whether the plaintiff has superior right of pre-emption? O.P.P.
7. (5)Whether the ostensible sale price of Rs.60;000 was fixed in good faith or actually paid? O.P.D.
8. (6)If issue No.5 is not proved; what was the market value of the suit land at time of sale? O.P.P.S. (7)Whether the defendant is entitled to get ancillary expenses from the plaintiff? O.P.D..
9. (8)Whether the defendant has carried out improvement qua the suit land? If so, what was its value and with what effect? O.P.D., (9)Relief.
10. After issues had been raised, suit was adjourned to 28-11-1984, for parties evidence. On the adjourned date, plaintiff was not ready with evidence and requested for time. At her request, suit was adjourned to 10-3-1985 for parties evidence and the plaintiff was burdened with Rs.25 as costs of adjournment. On 10-3-1985, Mr. Aurangzeb, Advocate, appeared for the principal counsel and requested for more time. Suit was then adjourned to 11-5-1985, for pre-emptor's evidence. She was given last opportunity and was told that no more adjournment will be allowed. She was also burdened with Rs.100 as costs of this adjournment. Despite last opportunity, pre-emptor, did not bring her evidence. Her counsel requested for time and prayed for another adjournment. Learned Civil Judge found that no sufficient cause was shown to exist for allowing another adjournment, applied Order XVII, rule 3 of Civil Procedure Code and after closing plaintiff's evidence, dismissed the suit on 11-5-1985. It may be noticed that plaintiff was not shown present on these dates of hearings. Since, she was not present on 11-5-1985, her statement could not be recorded. Against the dismissal order, pre-emptor appealed to learned Additional District Judge, Khanewal. Appeal proved unsuccessful and was dismissed on 12-12-1985. Pre-emptor still feels dissatisfied and has come up to this Court to seek revision of the orders passed by the Courts below.
11. It was urged that Court was erroneous in applying Order XVII, rule 3 of Civil Procedure Code against the petitioner. Counsel also argued that decision reached under Order XVII, rule 3 presupposes decision on merits and in the absence of material, decision on merit could not be given. Therefore, the proper Rule to be applied to the case was rule 2, Order XVII and suit should have, in proper exercise of discretionary jurisdiction been. Adjourned to a further date to enable the pre-emptor to bring necessary evidence. It was also argued that provisions of rule 3 are penal and stringent in character and in view of the rule of law laid down by superior Courts, should be sparingly invoked.
12. Lastly, contended that it was the policy of law that causes brought to the Courts be adjudicated on merits and rules of procedure be so interpreted as to advanced the cause rather than stifle it.
13. Learned counsel also submitted that pre-emptor was a 'Pardah'-observing lady and her counsel had not communicated to her the dates of hearings or that she should produce her evidence on the dates fixed by the Court.
14. After hearing arguments and examination of the available material, I feel the complaint made was totally unjustified. It was a simple pre-emption suit which neither raised complex facts nor required very lengthy evidence. After issues were framed on 8-7-1984, pre-emptor was allowed almost four months time to produce her evidence. She failed to properly utilize the time given to her and did not produce evidence on the adjourned dates. Suit was however, adjourned twice to enable her to bring evidence and prove her entitlement to get the land. No evidence, however, was produced by her. In the circumstances;_ Court could not do anything further for her and rightly shut her evidence. After all, she was allowed about 10 months time to collect he 'evidence and produce it in the Court. She failed to do so and did not offer any satisfactory explanation for the lapse. In my opinion, the time allowed was more than enough for her and she was not entitled to A be further indulgently treated because she was a 'Pardah -observing lady. I do not now of any provision of law, at least none has been brought to my notice that in case pre-emptor was 'Pardah'-observing lady, she was entitled to be differently treated and greater indulgence could be shown to her in the matter of prosecution of her pre-emption claim. I am, therefore; not pursuaded on this score to allow her further opportunity. There is no material available to hold that her counsel was guilty of misconduct in not informing her about the dates of hearings and also that she had to produce evidance. Various' dates of hearing her counsel was present and despite absence of the pre- emptor, requested the Court for time. It was at his request that the Court was moved to allow adjournments. On the present record, it cannot be said with any certainty that petitioner's counsel was in any manner negligent or guilty of any omission in the performance of his professional duties. May be, after the pre-emptor had lost the suit on account of her own negligence, she has come out with complaint against her counsel. Sole legal question which really arose for consideration in the revision was whether in the absence of proper material before the Court, it could have dismissed the suit under Order XVII, rule 3 of the Civil Procedure Code. A distinction was drawn between rules 2 and 3 of Order XVII of the Civil Procedure Code and it was submitted that when there is no material, may be because of the plaifitiff's own negligence, the Court could not decide the suit under rule 3 and was bound to adjourn the suit under rule 2. With utmost respects, I regret to subscribe to the aforesaid view. In view of the frame of the issues and placement of onus, it was the duty of the plaintiff to begin and produce her evidence first in support of the issues, onus whereof lay upon her. It was only after she had led her evidence that the defendant could be asked to lead his defence. Therefore, if the pre-emptor failed to bring her evidence and discharge the burden placed on her in view of the pleadings and consequent issues despite opportunity afforded to her the suit cannot be adjourned for her evidence ad infinitum and the Court at some stage or the other has to decide the suit for want of evidence. When the plaintiff creates such a situation and despite adequate opportunity does not bring the material evidence before the Court, the Court is given ample powers proceed and decide the suit. It is neither proper nor legal to go on adjourning the suit despite recalcitrant attitude of a litigant. In this case, it was the pre-emptor who had to bring the evidence first. Having failed to do so it does not lie with her to urge with success that the Court should have exercised discretion in her favour and further adjourned the suit despite her negligent attitude. Rule 3 o Order XVII in its plain reading envisages a sitaution where a party to whom time had been granted for the production of evidence or to cause the attendance of his witness, 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.
15. Undoubtedly, grant or refusal of adjournment was within the discretion of the Court. Adjournment could only be allowed if there was sufficient cause for the same and when no sufficient cause was disclosed, the Court could refuse to adjourn the suit and decide the same. Precise point raised in the civil revision fell for consideration before a Full Bench of Rajasthan High Court in Gopi Kisan v.
16. Ramu and another AIR 1964 Raj. 147 and after a survey of obnspectus of decisions of several High Courts, Full Bench found that in such a case rule 3 of Order XVII could legitimately be applied. On page 151 of the Report learned Judges of the Full Bench observed "The obvious question which arises next is whether can absence of evidence altogether exclude the applicability of order XVII, rule 3? It is difficult to lay down such a wide proposition. The intention of Order XVII, rule 3 as has been noticed is that a party seeks Time to produce evidence or do something to further the progress of a suit and makes default in doing either, a Court may decide the suit forthwith. To our mind, it is too wide a proposition to lay that in no case where evidence has not been le( Rule 3 would. Be inapplicable. The test should be whether the Court before whom the suit is pending on the basis of material before it is it a position to decide the suit forthwith, the default of a party notwithstanding. The pleadings, of the parties and issues arising there from may in some cases enable a Court to decide the suit forthwith.
17. Suppose in a suit on a promissory note the execution of which has not been denied by the defendant and the defendant pleads want to consideration seeking time to produce evidence.
18. Time is allowed but he makes default in producing evidence. Can the suit be not decided in view of the legal presumption contained in section 118 of the Negotiable Instruments Act? In a converse case the defendant denies execution and the plaintiff is granted time to prove execution and he makes default. Can the suit be not decided on the ground of the default made by the plaintiff in discharging the burden of proof placed on him? In the first illustration it can perhaps be said that the promissory note execution whereof has been admitted constitute evidence and there is material on record to attract the applicability of rule 3. In the second illustration, however, the execution not having been admitted there is obviously no evidence. The plaintiff fails to discharge his duty. Can we say that the suit should be disposed of in accordance with Order IX as per Order XVII, rule 2? The answer is plainly in the negative for the situations envisaged under Order IX are different than the one we have in the illustration. Can it be said that the Court may pass such other order as it thinks fit as laid down in rule 2 of Order XVII? Such an order can be no other than to adjourn the case for plaintiffs absence in a situation such as this.
19. Therefore, if the plaintiff fails to discharge the burden placed on him in view of the pleadings and consequent issues despite the opportunity afforded to him the case cannot be adjourned for his evidence ad infinitum and the Court at some stage or the other has to decide it for want of evidence. Even in a contested suit issues are sometimes decided for want of evidence and so can the whole suit. Therefore, in our opinion the existence of material does not necessarily mean existence of evidence. If a suit can be decided despite the lack of evidence on the material before it Order XVII, rule 3 can be said to govern the case. Material on record need not be given a technical meaning and equated to evidence.
20. The circumstances of each case will regulate the exercise of discretion vested in s Court. It is for the Court to exercise its discretion and to indicate without ambiguity whether it is exercising its power under Order XVII, rule 3 or not. It is that the application of rule 3 restricts the future remedies of a defaulting party and is a stringent provision, and, therefore, it should be applied with circumspect caution and judicial restraint. Ramkaran's case I L R (1953) 3 Raj. 798, therefore, has to be read with the aforesaid modification. No exception can, however, be taken to the reasoning adopted in Amarsingh's case 1953 Raj. LW 365."
21. Applying the rule of law laid down by learned Judges of Full Bench with which I find myself in complete agreement, I do not find that the Courts below went wrong in closing the pre-emptor's evidence and dismissing her suit for want of evidence/ material in support of the issues onus whereof was placed on her. Delays in the decisions of controversies brought before the Courts for adjudication are becoming proverbial. It is high time to check and frustrate tendencies on the parts of litigants to cause delays and unnecessarily prolong the litigation. When judged in the light of the observations made above, I am in no manner of doubt to say that learned Judges of the Courts below exercised their jurisdiction properly and without any taint of any irregularity. Exercise of discretion was also regulated by relevant and proper considerations. It was a pre-emption claim and the plaintiff who claimed to be daughter of the vendor was expected to show some vigilance in prosecution of her suit. No good ground, therefore, has been shown to exist for causing interference with the orders of the Courts below passed competently and in proper exercise of jurisdiction. Petition is without merit and is dismissed summarily.
22. A . A .Revision disallowed.