On 1-4-1978, Mehr Kabir respondent filed a suit for possession by pre-emption on the basis of co- sharer in the Estate against Javed Akhtar Nawaz, appellant, in the Court of Senior Civil Judge, Jhang. The suit was resisted. The issues were framed. Evidence of the respondent/plaintiff was recorded. The plaintiff closed his affirmative evidence on 14-9-1981 and the case was adjourned to 3-1-1982 for the evidence of the appellant/defendant. Thereafter, the case faced several adjournments and was finally adjourned to 16-7-1983. On 16-7-1983, the case was called thrice. On the last call neither the appellants, his counsel, nor his witnesses appeared in the Court, so the learned trial Court closed his evidence under Order XVII, rule 3, C.P.C. And relying on the evidence which had been produced by the respondent/plaintiff, decreed the suit on the same day. Feeling aggrieved, the appellant filed appeal which was accepted and the case was remanded to the trial Court with the observation:-- "I am of the considered opinion that the learned Trial Court had rightly applied the provisions of Order 17, rule 3, C.P.C. In this case and closed the evidence of the appellant but erred in giving a hasty decision against the appellant without reverting to the whatever material was on the record of the case before him on the said date. In these circumstances, therefore, I accept this appeal, set aside the judgment and decree of the learned Trial Court and remand the case to the learned Trial Court with the direction that he should record the statement of the plaintiff---respondent in the affirmative and then on the basis of the evidence on the record of the case, decide the case in accordance with law. The order of the learned Trial Court closing the evidence of the appellant under Order 17, rule 3 C.P.C. Would, however, remain operative though he would be entitled to cross-examine the plaintiff-respondent when he appears in Court as his own witness.
" Feeling dissatisfied with this order of remand Javed Akhtar Nawaz appellant has filed present appeal.
2. Learned counsel for the appellant contended that since 16-7-1983 was not fixed for the evidence of the appellant/defendant at his request, therefore, his evidence could not have been closed under Order XVII, Rule 3, C.P.C Supporting the order of the learned Appellate Court and judgment and decree of the learned trial Court, the learned counsel for the respondent/plaintiff argued that since on two dates, i.e. 14-3-1982 and 30-5-1982, the case was adjourned at the instance of the defendant/appellant, therefore the learned trial Court had rightly closed his evidence on 16-7-1983.
3. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. I find that on 30-4-1983, the case was adjourned to 16-7-1983 by means j, of following order:- It is thus very much obvious that 16-7-1983 was fixed without the request of the defendant/appellant. No doubt, on earlier occasions, the case was adjourned from 14-3-1982 to 30-5-1982 and from 30-5-1982 to 26-10-1982 at the request of the appellant/defendant, but his evidence was not closed on the aforesaid A adjourned dates. Instead it was closed on 16-7-1983, to which it was not adjourned at his request. The earlier adjournments on his requests do not constitute valid basis for closure of his evidence on a subsequent date to which the case was not adjourned at his request. Rule 3, Order 17, C.P.C. Reads as under:-- Rule 3, OXVII.
"Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, 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."
The words used in rule "where any party to a suit to whom time has been granted fails to produce his evidence" are of much significance. So far the purpose of grant of time to a party, the relevant date is the date preceding the date on which the evidence is closed and not the earlier dates.
Furthermore, when on 16- g 7-1983, the case was lastly called and the evidence of the appellant /defendant was closed, neither he nor his learned counsel was present in the Court. Therefore, the proper course for the trial Court was to proceed against him ex parte under k Order XVII, Rule 2, C.P.C. Read with Order IX, Rule 6, C.P.C. Rule 2, Order XVII, may be reproduced advantageously:- Rule 2, O.XVII:- "Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit."
For these reasons, I feel that the orders made by t ht, Courts below are bad in law.
Pursuant to the above discussion, the appeal is accepted. Judgment and decree of the trial Court dated 16-7-1983 and the order of the learned Appellate Court dated 19-2-1984 are set aside and the case is sent back to the trial Court for further proceedings in accordance with law. The parties will bear their own costs.