' This civil revision was brought to challenge the judgment dated the 19th of April, 1990, of the learned Additional District Judge, Lahore, whereby he accepted the respondent-plaintiff's appeal and remanded the case to the trial Court for fresh decision after affording him one more opportunity for producing evidence.
2. In his suit filed on the 17th of February, 1987, the respondent sought recovery of Rs,12,225 from the petitioner-defendant. The latter contested it whereupon issues were framed on the 17th of November, 1987, and eversince it was adjourned primarily for the respondent's evidence eighteen- twenty times over a period of almost two years. On the 16th of May, 1989, he was burdened with costs amounting to Rs,50 for seeking adjournment till the 24th of June, 1989, for producing his evidence. Again he failed to produce the same and repeated his request for a further adjournment.
He was allowed the same till the 4th of September, 1989, though without costs, yet with a warning that it could the last one. Despite this note of caution, the respondent failed to produce evidence whereupon the trial Court closed it under Order XVII, Rule 3, C.P.C. And dismissed the suit forthwtih for want of proof.
3. The respondent appealed from the decree. The learned Additional District Judge accepted the appeal on the ground that since the petitioner-defendant had raised no objection to the last adjournment allowed on the 24th of June, 1989, it could not be deemed to have been obtained exclusively by the respondent so as to fall within the purview of Order XVII, Rule 3, C.P.C. He formed this opinion on the basis of decisions reported in Syed Tasleem Ahmad Shah v. Sajawal Khan etc. 1985 SCMR 585 and Muhammad Hussain etc v. Akram Baig etc. PLD 1988 Lah. 183 where, according to his reading, failure to object to the penultimate adjourment was held to have the effect of showing it to have been jointly obtained by both the parties. He further observed that the judgment of the trial Court did not conform to the requirements of Order XX, Rule 5, C.P.C. And was, therefore, untenable for this additional reason as well.
4. The petitioner-defendant objected to the view adopted by the learned Additional District Judge on the ground that in the two cases relied upon by him, the opposite-party had overtly agreed to the adjournment and, therefore, those were distinguishable from the present one where no such consent was signified by him, and cited Sh. Zafar Iqbal v. Barkat All etc. PLD 1988 Lah. 311 to strengthen his plea. He submitted that if at his instance the respondent was burdened with costs for obtaining the immediately preceding adjournment, there was no occasion to hold that he had tacitly agreed to the present one. He drew attention to the warning given to the respondent in the order of treating it as last adjournment, and stressed that it was nothing but translation of his objection to postponement of the case.
5. A comparative perusal of all the cases cited above would suggest that where the opposite side agreed to granting of adjournment to the plaintiff, Order XVII, Rule 3, C.P.C. Was held inapplicable.
Evidently, such adjournment was deemed to have been obtained jointly by both the sides. Their common consent to postponing the hearing excluded the application of Order XVII, Rule 3, C.P.C., but it has been laid down in the Sh. Zafar Iqbal's case rather more pragmatically that failing to get an objection to the adjournment recorded on the file would not, by itself, connote that the defendant had accorded his consent so as to make the adjournment attributable to a joint request. In the present case, keeping the long list of adjourments and even burdening the respondent with costs on the penultimate hearing amply revealed that the petitioner-defendant did not exhibit intent of being a consenting party to further adjournment. The additional fact that the Court itself made it explicit that it would be the last adjournment was rightly claimed to be relatable to the petitioner's insistence that the matter should end somewhere.
6. Due to ex parte hearing of the present revision petition against the respondent, I had had no occasion to hear him about the arguments raised in support thereof. However, apparently the decision rendered in the Sh. Zafar Ibql's case seems to clinch the matter in issue. It will be noticed that the decision in the Syed Tasleem Ahmad Shah's case by the Supreme Court was taken due care of and was held distinguishable on the plane that the defendant there had overtly expressed that he had no objection to the adjournment. Since no such expression was made by the petitioner-defendant before the trial Court, it would not be appropriate to apply the same rule to his case.
7. As a result, the revision petition is accepted ex parte; the impugned B judgment of the lower appellate Court is set aside and that of the trial Court is restored.