' Facts giving rise to this civil revision are that a suit brought by the petitioner, Ghulam Hassan, against the respondents, Rustam Ali and others, was fixed for 2nd May, 1983, for evidence of the petitioner. On 2nd May, 1983, he requested for adjournment which was allowed and the case adjourned to 14th of June, 1983 for his evidence. On 14th June; 1983, the Presiding Officer was on leave and the case was adjourned by his Reader to 28th July, 1983 for evidence of the petitioner. On 28th July, 1983, petitioner's evidence was not there. His case was, therefore, closed and the suit dismissed, under Order XVII, rule 3 of the Code of Civil Procedure. The petitioner filed appeal before an Additional District Judge but in vain. He has, therefore, come up in revision to this Court.
2. It was contended by learned counsel for the petitioner that the case was not fixed for evidence for 28th July, 1983 at the request of the petitioner and, therefore, the learned Civil Judge could not close his evidence on the saia date by having recourse to the provisions of Order XVII, rule 3 of the Code of Civil Procedure. He cited Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (1), Haji Muhammad Ramzan Saifi v. Mian Abdul Majid and others (2), Aliied Bank of Pakistan Ltd. v.
Abdur Rehman Khan and 2 others (3), Syed Tasleem Ahmad Shah v. Sajawal Khan etc. (4) to support his arguments.
3. On the other hand, it was urged by learned counsel for respondents Nos. 3 and 4, hereinafter referred to as the respondents, that in view of the provisions of rule 5 of Order XVII of the Code of Civil Procedure, the petitioner was required to produce evidence on 28th July, 1983 but as he did not do so, his suit merited dismissal under rule 3 thereof. In this connection, reliance was placed by him on a case decided by me, namely, Zia-ul-Hassan Hashmi v. Faiz Ahmad and another (5).
4. In the case of Maulvi Abdul Aziz Khan it was held by the Supreme Court that rule 3 of Order XVII of the Code of Civil Procedure applies to a case where time has been granted to a party at his instance, to produce evidence, or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted.
5. Above opinion was reiterated by the Supreme Court in Haji Muhammad Ramzan Saifi's case. In this case, adjournment was allowed to the plaintiff on 29th March, 1983, on payment of Rs, 200 as costs for production of evidence on 18th April, 1983. On 18th April, 1983, the Presiding Officer was on leave and the case was put up before another learned (Duty) Judge, who further adjourned the case on account of the absence of the original learned trial Judge, on leave. This adjournment to 22nd June, 1983 was also for the production of evidence by the plaintiff. In order, dated the 18th April, 1983, it was noted that 22nd June, 1983 was the last date and further that the costs directed on 29th March, 1983 had already been paid. On the next date of hearing on 22nd June, 1983, the plaintiff did not produce evidence. He requested for further adjournment which was refused and by the application of provisions contained in Order XVII, rule 3 of the Code of Civil Procedure, his case was closed and the suit dismissed for lack of evidence. It was held that since the reason for adjournment on 18th April, 1983 was the absence of the Presiding Officer, who was on leave, the said adjournment was not at the instance of the plaintiff and, therefore, he could not be proceeded against under Order XVII, rule 3 of the Code of Civil Procedure. {{FOOT NOTE}}
(1) PLD 1971 SC434 (2) PLD 1986 SC 129
(3) 1986 CLC 3021 (4) 1985 SCM R 585
(5) 1984 CLC 1491 {{FOOT NOTE}}
6. In the case of Executive Engineer, Peshawar v. Messrs Tour Muhammad & Sons and 4 others (1) it was observed by the Supreme Court that for applying the provisions of rule 3, it is immaterial whether adjournment is granted at the instance of a party or for other reasons. While deciding the case of Haji Muhammad Ramzan Saifi, the case of Executive. Engineer, Peshawar, was however, distinguished by the Supreme Court in the following words ;-- "Learned counsel for the petitioner has raised three arguments in support of this petition. Firstly, that, it is not now necessary for the application of Order XVII, rule 3, that the time should have been granted by adjourning the case at the instance of the party concerned. He has relied on the following observation by this Court in Executive Engineer, Peshawar v. Messrs Tour Muhammad & Sons and 4 others (2) :- `It is immaterial whether the adjournment was granted at the instance of the party or for other reasons.'
' Learned counsel failed to appreciate the context in which the observation was made ; namely, that the party at whose instance the time was granted to perform a certain act was not only a defaulter in that behalf but had also absented himself. In the circumstances of that case, the absence of the party was not to be ignored and this, it was noted 'that the fact that adjournment was not granted at its instance will not make any difference. The additional factor being the absence of the party itself, the case is thus clearly distinguish. Able. The law was laid down by this Court on the question raised by the learned counsel more than a decade ago in Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others as follows :- `that this rule (rule 3 of Order XVII, C. P. C.)_ applied to a case where time has been granted to a party at his instance, to produce evidence or to cause the attendance ..Of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted.'
' This view has been reiterated in many other cases. There is mass of case-law from other superior Courts on the point, that is why, learned counsel ultimately agreed that the point he was raising was against the consensus for the last nearly 100 years . . . . ."
7. In Faiz Bakhsh v. District Judge, Multan and others (3) it was opined by my learned brother Muhammad Munir Khan, J. That if once the case is adjourned at the request or at the instance of a party, the Court will be legally competent to close his evidence. .1n Haji Muhammad Ramzan Saifi's case, the Supreme Court referred to the case of Faiz Bakhsh and observed as under :- "Secondly, he contended that on an occasion earlier than the last date of adjournment i. e.
18.4-1983 the case had in fact been adjourned at the instance of the respondent-plaintiff, therefore, relying on Faiz Bakhsh v. District Judge, Milian and others 1983 CLC 2437 he contended that it did not make any difference that on the said date I. e.
18.4-1983 the adjournment was granted not at the instance {{FOOT NOTE}}
(1) 1983 SCMR 619 (2) PLD 1983 SC 619
(3) 1983 CLC 2437 {{FOOT NOTE}} of the respondent but for another cause, namely, the absence of the Presiding Officer.
' It is not necessary to examine this point in detail because there is a factual distinction between the two cases. If a case is being adjourned from time to time on account of an initial request made by a party for a certain purpose and each time that request is deemed to have been notionally included in the repeated order the case might be different and it might require fuller examination.
And in that eventuality the observations made by this Court in Syed Tasleem Ahmad Shah v.
Sajawal Khan etc. 1985 SCMR 585 would be relevant, and in that case, the resolution of the controversy raised by the learned counsel for the petitioner might go against him. . But in this case even if earlier the case was adjourned at the instance of the respondent-plaintiff, the adjournment granted on 18-4-1983, it cannot be denied, was on account of the absence of the Presiding Officer.
Therefore, there is no force in the second contention either."
8. In the case of Syed Tasleem Ahmad Shah it was held that if adjournment is sought by a party and no objection to the adjournment is raised by the other party, it will not be an adjournment at the instance of the other party. In Syed Tasleem Ahmad Shah's case also the case of Executive Engineer, Peshawar was distinguished with the observation that "it was not a case of closure of the evidence as of proceedings ex parte against the defendants who had failed to file the written statement".
9. In the case of Aliied Bank of Pakistan Ltd. The suit was fixed for 28th November, 1982 for recording of evidence. On that date, it was adjourned to 29th January, 1983 for the reason that the Record Clerk of the Allied Bank of Pakistan Ltd., which was plaintiff therein, was on leave on that date. On 29th January, 1983 the Presiding Officer of the Court had handed over the charge and, therefore, evidence Mild not be recorded and the case was adjourned for further proceedings as earlier ordered to 24th March, 1983 by the Reader of the Court. This time, learned counsel for the plaintiff, in the presence of the learned counsel for the defendant, informed the Court that due to Bank audit tie Manager was unable to bring the relevant record with him. The case was therefore, adjourned with the observation that it would be the last chance for recording evidence of the plaintiff. On 23rd May, 1983, the learned trial Court dismissed the suit after invoking the provisions of Order XVII, rule 3 of the Code of Civil Procedure. View taken by the learned Division Bench of the Peshawar High Court, which decided the appeal arising out of the order of the learned trial Court, was that adjournment allowed on 24th March, 1983 was made in routine and the mere fact that in the end the learned trial Judge had made an observation that it will be a last chance for recording of plaintiff's evidence would not change the character of the order. It was further held that since the said adjournment was not at instance of the plaintiff, he could not be preceded against ,under Order XVII, rule 3 of the Code of Civil Procedure. It was also observed by the learned Division Bench that the penal provisions of rule 3 cannot be applied unless it is proved on the record, in unambiguous terms, that adjournment was given to a party at its instance.
10. It is true that in view of interpretation placed by me on provisions of Order XVII, rule 5, of the Code of Civil Procedure, in the case of Zia-ul-Hassan Hashmi, the petitioner in the case in hand was required to produce evidence on 28th July, 1983 notwithstanding the fact that the said date was fixed by the Reader of the learned Civil Judge but his case could not be closed on that date due to his failure to produce evidence because on the immediately preceding date, namely, 14th June, 1983, the case was not adjourned to 28th July, 1983, at the instance of the petitioner but due to non- availability of the Presiding Officer. It has not been stated in the order made by the Reader that the petitioner's evidence was not there on the date when the Presiding Officer was on leave. Facts of the case of Haji Muhammad Ramzan Saifi were similar to those of the present case; and as stated earlier, in the former, it was held by the Supreme Court that if a suit is adjourned due to the absence of the Presiding Officer, its adjournment cannot be attributed to any party.
11. Record of the instant case reveals that only one adjournment was allowed at the request of the petitioner before his case was adjourned for the absence of the Presiding Officer. It is, therefore, not a case attracting application of following observations made by the Supreme Court in the case of Hajl Muhammad Ramzan Saifi "If a case is being adjourned from time to time on account of an initial request made by a party for a certain purpose and each time that request is deemed to have been notionally included in the repeated order the case might be different and it might require fuller examination."
' As against the case in hand, the case of Faiz Bakhsh was adjourned from time to time in consequence of repeated requests of a party before he was proceeded against under Order XVII, rule 3 of the Code of Civil Pro' cedure. Faiz Bakhsh's case is, therefore, distinguishable on facts.
12. The upshot of the above discussion is that the law laid down in the case of Maulvi Abdul Aziz Khan is still holding, the field. As already stated, it was ruled in the said case that the provisions of Order XVII, rule 3 of the Code of Civil Procedure cannot be applied to a party unless he has failed to do the needful on a date to which the case is adjourned at his request. Since the suit of the petitioner was not adjourned to 28th July, 1983, for his evidence, at his request, his evidence, could not be closed and the suit dismissed on the above date, under Order XVII, rule 3 of the Code of Civil Procedure. Judgments and decrees passed by the two Courts below, therefore, suffer from an illegality and call for interference by this Court.
13. This civil revision is, accordingly, accepted, judgments and decrees of the learned lower Courts set aside and the suit remanded to the learned Civil Judge for fresh decision in accordance with law. Parties are, however left to bear their own costs.
14. Record of the trial Court shall be sent to it immediately. The parties shall appear before the said learned Court on 22nd January, 1987.