Facts giving rise to this civil revision are that the respondents, Muhammad Sharif and another, filed a suit against the petitioner, Muhammad Sadiq, for possession of certain land. The suit was decreed on the basis of a compromise. Thereafter, the petitioner filed an application under subsection (2) of section 12 of the Code of Civil Procedure for setting aside the judgment and decree passed in the above suit. It was alleged by him that the said judgment and decree were obtained by the respondents by fraud and misrepresentation. His application was opposed by the respondents whereupon following issues were framed on 2nd October, 1984:-
(1) Whether present application is barred by time? O.P.R.
(2) Whether application is not maintainable in its present form? O.P.R.
(3)Whether aecree, dated 31-10-1981 is result of fraud and collusion?
(4)Relief.
The application was fixed for 22nd December 1984 for evidence. On that date, the petitioner did not produce evidence. He was also not present. Application was, therefore, adjourned to 9th March, 1985, for evidence. On this date, also position was the same, and at the request of the petitioner's counsel last adjournment was granted to him. Case was then fixed for 19th May, 1985 for his evidence. On 19th May, 1985, the parties' counsel were present but the petitioner did not turn up. His evidence was also not there. His counsel made request for another adjournment which was not allowed. His evidence was closed and the application dismissed. Petitioner went in appeal but in vain. He has, therefore, come up in revision to this Court.
2. It was not disputed by learned counsel for the petitioner that the petitioner had failed to show sufficient cause for adjournment of the case on 19th May, 1985. It was, however, contended by him that after refusing adjournment the learned Civil Judge ought to have proceeded with the case under sub-rule (3) of rule 1 of Order XVII of the Code of Civil Procedure instead of deciding the case forthwith under rule 3 thereof. He cited Mst. Zaitoon Begum and 2 others v. Muhammad Ilyas and 6 others PLD 1971 Lah. 143 to support his argument.
3. Facts of the case cited by the learned counsel were different from those of the case before me. In the cited case, certain documents on the record were taken into consideration by the learned trial Court, without their having been tendered or proved by any body. No such illegality is involved in the present case. Moreover, in the case under report, it was frankly conceded by learned counsel for the respondents that rule 3 of Order XVII had no application to the facts and circumstances of the case and that he would invoke only sub-rule (3) of rule 1 thereof. Besides, in the precedent case there was an issue regarding valuation of the suit and it was held that after refusing to adjourn the case the trial Court should have found whether valuation of the suit for the purpose of court-fee and jurisdiction was correct of not. Observations made in this behalf read as follows:- "In the very nature of things, after refusing to adjourn the case, the next step to be taken 'to proceed with the suit forthwith', was to attend to the matter of valuation and find a; to whether the valuation for purposes of court-fee and jurisdiction was correct or not. If it was not correct, then the Court should have first got that corrected and if any additional court-fee was required he should have asked the plaintiffs to make good the deficiency of the same under Order VII, rule 11 read with section: 148 and 149 of the Civil Procedure Code, 1908, and it was thereafter that the question of limitation could have been attendee to. If the Court had proceeded in this way, it would hav4 realised that there was a possibility of its order being difference which may have affected its discretion even in the matter o: adjournment."
In the instant case there was no issue relating to the valuation of the suit. The case under report is, therefore, of little help to the petitioner 4.It is in view of the facts and circumstances of each case that the Court has to decide whether to proceed with the suit, after refusing adjournment to the party who is required to produce evidence, or to decide the suit forthwith. If it is worthwhile to go ahead with the suit, the Court should act accordingly under sub-rule (3) of rule 1 of Order XVII, but if the postition is otherwise it will be justified in deciding the suit forthwith under rule 3 thereof. Needless to say that while deciding the suit under rule 3, the Court will not necessarily non-suit the party at fault. Instead, it will decide the suit on merits by adverting to everything on the record which can be legally taken into consideration.
5. In order to illustrate the above provisions of law, following observations were made in the case of Mst. Zaitoon Begum and 2 others, relied upon by learned counsel for the petitioner:- "A comparison of the rules 1(3) and 3, Order XVII of the Civil Procedure Code, 1908 will show that under sub-rule (3) of rule 1 of Order XVII, what a Court can do when an adjournment is not granted is to proceed with the suit forthwith. While in rule 3 of Order XVII, the Court is to 'proceed to decide the suit forthwith'. This shows that in Order XVII, rule 3, decision is to be on the merits of the case on the basis of the material till then produced in evidence. While under sub-rule (3) of rule 1 of Order XVII, it is not the decision which is to be given forthwith, but further steps in the progress of the suit are to be taken. -As for example if some witnesses had been allowed to be produced, who- are- not being produced on the relevant date, then the Court may refuse to adjourn the case for production of those witnesses over again and may ask the party concerned to produce any other evidence which may be present on that date or to himself appear in the witness-box. Similarly, if in this way the plaintiff's evidence is closed, the Court may proceed to record the defendant's rebuttal evidence and attend to his case and position."
Applying the above formula to the present case, if the petitioner had entered appearance on the date fixed for his evidence, the Court should have, after refusing adjournment to the petitioner to produce his other witnesses, recorded his statement as his own witness and then adjourned the case for evidence of the respondents in rebuttal. However, as the petitioner was not present and the respondents were not required to produce evidence on the said date, nothing could be achieved by the learned trial Court by proceeding further with the case on the said date. There was also hardly any need to adjourn the case to a future p date for evidence of the respondents because even if the respondents had not been able to prove issues Nos. 1 and 2, of which onus was placed upon them, the application was liable to be dismissed for petitioner's failure to produce evidence on issue No. 3. In other words, even by proceeding further with the suit, the learned Civil Judge would have dismissed the application as done by him and thus further proceedings in the suit would have been an exercise in futility.
5. It has been provided in rule 3 that if time has been allowed to a party to produce evidence but he fails to do so, the Court may decide the suit forthwith. In the instant case also, the petitioner was allowed time, at his request, to produce evidence on 19th May, 1985 but he did not does so.. He was also not present on the date fixed for his evidence. Earlier too, he had got number of adjournments to adduce evidence but did not produce any. Learned trial Court, therefore, proceeded against him under rule 3. While so doing, the learned Additional District Judge relied on Muhammad Sadiq and others v. Shakila Jamil 1983 CLC 1705 and Executive Engineer, Peshawar v. Messrs Tour Muhammad and Sons and 4 others 1983 SCMR 619. In the case of Muhammad Sadiq and others, two months' adjournment was allowed at the request of a plaintiff and he undertook to produce his witnesses.
On the date to which the case was so adjourned, however, no evidence was produced by him nor he himself was present. His evidence was, therefore, closed for his complete indifference to his "own commitment and to the order of the Court". Order passed in this behalf was upheld by a Division Bench of this Court. In the case of Executive Engineer, Peshawar, it was held that rule 3 applies to the party at fault even if adjournment was not allowed at his request. Relevant observations made in this regard read as under:- "This Rule applies where a party who is granted time to perform some act not only fails to do so but is also absent on the date to which the hearing is adjourned. It is immaterial whether the adjournment was granted at the instance of the party or for other reasons."
6.It was also urged by learned counsel for the petitioner that since there was no material on the basis whereof the learned Civil Judge could decide the application on merits, he could not proceed under rule 3. It was further maintained by him that if the petitioner had not led evidence and his evidence had been closed, learned Civil Judge ought to have called upon the respondents to produce evidence on issues Nos. 1 and 2 instead of deciding the suit forthwith. In this connection, reliance was placed by him on Muhammad Haleem and others v. H. H. Muhammad Naim and others PLD 1969 SC 270.
7. The case of Muhammad Haleem and others is distinguishable on facts. In that case "entire evidence had been led" and it was fixed for arguments for 25th November, 1963. On this date, learned counsel for the petitioners could not appear before the High Court as was busy in the Supreme Court. One of his clients approached him in the latter Court and informed him that the matter was to come up for hearing. He sent a chit to the Sarishtadar of the Court through the said client requesting that the matter may not be taken up for hearing as he was still busy before the Supreme Court. This chit was duly delivered to Sarishtadar, but the Court dismissed the matter for non-prosecution because even after the case has been called on thrice, neither the learned counsel nor his clients were found to be present in the Court which by then had no work left. The petitioner moved an application for rest(*ration of the application but that too was dismissed. View taken by the Supreme Court was that instead of dismissing the case under rule 2 of Order XVII of the Code of Civil Procedure the High Court should have decided the case on merits. Relevant observations of the Supreme Court are as follows:- "The consensus of judicial opinion appears to be in favour of the view that if it is possible for a Court to base a decision on merits upon the materials already brought on the record, it should proceed under rule 3 of Order XVII and not under rule 2. This appears to us also to be sound on principle.
Every party who has instituted a cause or matter in a Court has a right to have his case decided on merits. A dismissal for non-prosecution should, therefore, be an exception and not a rule. If it is ail possible for a Court to decide the matter as indicated in rule 3, then it should adopt that course and not dismiss the proceeding for non-prosecution and leave the parties to start a second ground of litigation.
In the facts and circumstances of the case before us we have no hesitation in coming to the conclusion that this was not an appropriate case in which the Court, acting in the proper exercise of its judicial discretion, should have dismissed it for non---prosecution. The entire evidence had been led and the Court should have come to a decision on merits in the matter."
8. There is nothing in case of Muhammad Haleem and others to suggest that the Court should not proceed to decide a case under rule 3 even though the material needed for its decision on merits does not become available to it due to contumacious and negligent conduct of the party who is required to furnish such material. My feeling is that the above-quoted observations were made by the Supreme Court in view of the facts of the case of Muhammad Haleem and others and they cannot be pressed into service as an authority for the proposition that even if a plaintiff deliberately fails to produce evidence on the issues required to be proved by him he cannot be non-suited without recording evidence of the defendant, in rebuttal. If this proposition is accepted, it will amount to penalizing the defendant for the fault of the plaintiff which was, obviously, not intended by the Supreme Court. In my humble opinion, what has been laid down in the said case is that if in view of the material on the record it is possible for the Court to decide a case on merits, the case should be decided accordingly under rule 3 of Order XVII instead of dismissing it in default, under rule 2 thereof.
9. I am also of the view that if there is no material on the record, to enable the Court to decide a case on merits, it is not open to the party who is responsible for the absence of such material to contend that the suit cannot be decided forthwith under rule 3. There is well known maxim that a party cannot be allowed to take advantage of his; own wrong. If a plaintiff is "obstinate and stubborn in ignoring on defying" directions of the Court in regard to the leading of evidence, in support of his claim and thus no evidence becomes available to the! Court despite numerous adjournments allowed to him for the purpose, will the Court be obliged to go on adjourning the case until good sense prevails on him and he decides to co-operate with the Court and produce evidence? In other words, will the Court be at the mercy of the plaintiff C in the matter of deciding the suit on merits? My answer to these questions would be in the negative. It was with the object of dealing with a party guilty of contumacy or gross negligence that provisions of, rule 3 were enacted. If the view taken is that in no case a matter cant be decided under rule 3 unless some evidence has been duly produced before the Court, it would, I am afraid, in certain cases, defeat the above provisions of law. As explained above, in the present case, the' petitioner was allowed several opportunities to produce evidence but he' opted not to do the needful. He also did not care to enter appearance before the Court. Admittedly, there was no justification for grant of adjournment on 19th May, 1985. It was, therefore, an eminently fit case for decision under rule 3.
10. It was also submitted by learned counsel for the petitioner that since the petitioner was not present when his application was dismissed, his application should have been dismissed under rule 2 of Order XVII and not under rule 3 thereof. It is not disputed that the petitioner's counsel was there on the relevant date. In the circumstances, provisions of rule 2 could not be pressed into service by the learned Civil Judge.
I, therefore, see no merit in the argument of the learned counsel for the petitioner that the learned Civil Judge should have dismissed the suit in default instead of deciding it on merits.
11. One more point canvassed by learned counsel for the petitioner was that the decree passed in the suit brought by the respondents was without jurisdiction but the learned Civil Judge had not adverted to this aspect of the matter. No doubt, under subsection (2) of section 12 of the Code of Civil Procedure, the petitioner could assail the decree on the ground of want of jurisdiction but plea in this regard was not raised in the application submitted by him. It was also not R advanced in the grounds of appeal filed before the learned Additional District Judge. Further, there is no evidence in support of the said averment. Learned trial Court was, therefore, not called upon to go into the question of jurisdiction.
12. There is no force in this petition. It is, therefore, dismissed in limine.