MUNIR A. SHEIKH, J.-- This is vendees' second appeal arising from a preemption suit which has been directed against judgment dated 11.7.1987 passed bv the learned District Judge, Layyah, dismissing their appeal from judgment dated 18.3.1978 passed by the learned trial Court through which the pre-empt ion suit was decreed in favour of the respondents.
2. The facts giving rise to his second appeal, shortly stated, are that land measuring 722 kanals, situate in Chak No.93/TDA, Layyah, was sold by one Muhammad Akbar Khan through registered sale deed dated 5.2.1973, to the appellants. Respondents 1 to 3 Tiled a suit on 4.2.1974 to pre-empt the suit land on the grounds that they were co-sharers, Khewaldars in the Khata and also the nephews of the vendor. The suit was contested by the appellants, who claimed an amount of Rs.
10,000/- on account of improvements, Rs. 11,(KK)/- on account of registration charges and Rs.
1800/- as District Council's fee. The controversy arising from the pleadings of the parties was reflected in the following issues framed by the learned trial Court:-
1. Whether the suit has been correctly valued, if not, its effect?
2. Whether the suit land has been wrongly described, if so, its effect?
3. Whether the plaintiffs have waived their right of pre-emption.
4. Whether the Zar-e-Panjum has not been deposited within time, it so, its effect?
5. Whether the plaintiffs have superior right of pre-emption as against the vendee-defendants?
6. Whether the sale price of Rs. 1,80,000/- has been fixed in good faith or actually paid?
7. If not, what was the market value of the suit land at the time of sale?
8. Whether the defendants have effected improvements over the suit land, if so, to what extent and with what effect?
9. Whether the defendants are entitled to any registration and taxation charges?
10. Relief.
3. The issues were framed on 21.12.1974. The learned trial Court fixed 19.4.1975 as the date for recording the evidence of the plaintiff's as also the defendants. On 19.4.1975 the case was adjourned to 9.6.1975, on which date evidence of the respondents/plaintiffs could not be recorded as the witnesses summoned by them had not been served. The case was, adjourned to 27.9.1975 for recording evidence of the plaintiffs. The evidence of the plaintiffs was, however, concluded on 2.6.1977, on which date the suit was also fixed for recording the evidence of the present appellants.
On the pigvious date of hearing i.e. 14.4.1977 it was observed that only one remaining witness of the plaintiffs was to be examined. On 2.6.1977 it was found that one of the witnesses summoned by the present appellants was served but he did not appear, therefore, the Court passed an order for issuance of bailable warrants of arrest for procuring the attendance of the said witness. The appellants were directed to deposit process fee as also the other expenses of the said witness within three days, and in case they failed to do so, the said witness was to be treated to have been given up. It was also found that no summon was issued to one of the witnesses, who was a Government servant and the summonses issued to the other witnesses had not been returned. The Court passed an order that the appellants shall be responsible for the service of those witnesses who were not Government servants, as provided under Order I6 Rule 7-A CPC. They were burdened with costs of Rs.30/- for the adjournment which had occasioned on the said date. The case was adjourned to 4.7.1977. On 4.7.1977 the evidence of the appellants was closed because they failed to deposit registered envelope for issuing notice to Fazal-ur-Rehman's witness. Bailable warrants of arrest of the other witnesses could not be issued because the appellants failed to deposit the diet money etc. It was also observed that the appellants failed to get the other witnesses served who were not Government servants, the responsibility regarding whose service was placed on the appellants. The case was adjourned to 5.7.1977 for recording evidence in rebuttal of the plaintiffs.
One of the plaintiffs, namely, Abdul Aziz Khan appeared as his own witness as PW.7.
4. The learned trial Court through judgment dated 18.3.1978 decreed the suit of the plaintiffs. Under issue No.1 it was held that the suit was correctly valued. Under issue No.2 it was held that the description of the land was given in accordance with the details as contained in the sale deed Ex.P-7, therefore this issue was answered in favour of the plaintiffs. Issue No.3 was answered in the negative for lack of evidence. Under issue No.4 it was held that instead of depositing Zare Panjam the plaintiffs had furnished security in compliance with the direction of the Court. Under issue No.5 it was held that the plaintiffs succeeded in proving that they were real paternal nephews of Muhammad Akbar Khan vendor, which fact was also proved from the pedigreetable (Ex.P-6).
Under issue No.6 it was held that an amount of Rs. 1,80,000/- was actually paid as the sale price of the suit land. In view of the. Finding on issue No.6, issue No.7 was disposed of accordingly. Issues No.8 and 9 were answered in the negative for lack of evidence.
5. The appellants, feeling aggrieved, challenged the said judgment and decree of the trial Court by filing an appeal before the learned District Judge, Layyah. In the appeal the order dated 4.7.1977 closing the evidence of the appellants was also acted arbitrarily in exercise of discretion regarding the question of application of the said provision, inasmuch as it was altogether ignored that the plaintiffs availed as many as ten adjournments for completion of their evidence.
7. The argument has considerable force. On 14.4.1977 the case was fixed for recording the remaining evidence of the respondents, on which date they closed the evidence except the statement of a Bank clerk. On the request of the respondents, the learned trial Court permitted them to summon the said clerk with record. The case was adjourned to 2.6.1977 for recording the remaining evidence of the plaintiffs as well as the present appellants. The appellants were directed to submit a list of witnesses within seven days. The appellants submitted the said list on 19.4.1977 with a prayer that they be allowed to deposit the diet money etc. For summoning them and that they be summoned for the date fixed. In this list, the following persons were mentioned, summoning of whom was prayed for:-
1. Rao Fazal-ur-Rehman's Khan, Consolidation Officer.
2. Roshan son of Taulu
3. Shabhir Ahmad
4. Sultan son of Sukha
5. Sharaf-ud-Din son of Ghulam Muhammad The Court passed an order on the same date for deposit of diet money etc. An amount of Rs. 115/- was deposited by the appellants on the same day. Summonses were issued to the said witnesses for appearance on 2.6.1977. Roshan16. Son of Taulu, according to the report of the Process Server, was served personally whose thumb impression was obtained in token of acceptance of service by him on the back of the summon. About Sharaf-ud-Din son of Ghulam Muhammad, the Process Server reported that he was not available having gone to some other place in connection with his business. Shabhir Ahmad was also personally served as per report of the Process Server ont he back of the summon issued to him. About Sultan son of Sukha, the Process Server reported that he had gone to Sargodha in connection with his business. No summonses were issued to Fazal-ur- Rehman's, Consolidation Officer, Multan, for 2.6.1977. The evidence of the Bank clerk as witness of the plaintiffs was recorded, and the learned counsel for the plaintiffs, without reserving the right to examine one of the plaintiffs as his own witness in affirmative evidence, closed the evidence of the plaintiffs. The learned trial Court observed that Shabhir Ahmad, a witness of the appellants, did not appear in spite of service, therefore, an order was passed for issuance of bailable warrants of arrest against the said witness. The appellants were directed to deposit the diet money and the process fee for the issuance of warrants of arrest of this witness and in case they failed to do so, they would be deemed to have given up the said witness. About other witnesses, it was observed that only Rao Fazal-ur-Rehman's was the official witness to whom summonses were not issued, or the same had not been returned. The Court also remarked that the other witnesses being not officials, it was the responsibility of the appellants under Order I6 Rule 7-A to get them served but they did not make any effort in this respect. The appellants were given adjournment subject to payment of Rs.30/- as costs. Summonses were ordered to be issued to Rao Fazal-ur-Rehman's witness, subject to deposit of process fee and registered envelope. It was observed that if the registered envelope was not deposited, the said witness would be taken to have been given up. On 4.7.1977, the next date which was fixed for recording evidence of the appellants, it was found that the 'registered envelope was not deposited for despatch of summonses to Fazal-ur-Rehman's. For issuance of warrants against Shabhir Ahmad, it was obseved that diet money was not deposited and the remaining witnesses were not got served personally by the appellants, therefore, the learned trial Court proceeded to close the evidence of the appellants under Order 17 Rule 3 CPC.
8. The question arises whether in these circumstances, it could be held that 4.7.1977 was the date fixed for evidence of the appellants on their request so as to attract the application of the provisions of Order 17 Rule 3. As has been observed earlier, the appellants filed a list of witnesses on 19.4.1977 within the time given to them through order dated 14.4.1977, i.e. One week. They deposited the process fee as also the diet money of the said witnesses on the same date, in pursuance of the order of the Court. Except Rao Fazal-ur-Rehman's, summonses were issued to the other four witnesses mentioned in the application. Apart from Shabhir Ahmad, Roshan son of Taulu was also personally served for 2.6.1977. The learned trial Court failed to take note of service of this witness, in addition to Shabhir Ahmad but no order was passed for procuring his attendance through warrants of arrest, because after service of summon on the witness the appellants were absolved of their reponsibility to produce him as in that case it becomes the responsibility of the Court to procure the attendance of such a witness who does not appear after having being served. About Sultan son of Sukha and Sharaf-ud- Din son of Ghulam Muhammad, the Process Server report that they could not be served because they had gone to some other places in connection with some business, therefore, the observation of the Court that the appellants had failed to make efforts to get them served on their own responsibility was based on acute misreading of the record. Since the diet money of Shabhir had already been deposited and he failed to appear after service the same remained unconsumed, therefore, burdening the appellants with the liability to deposit again the diet money for issuance of warrants of arrest was not justified under the law as the said money, which had already been deposited, could be availed of for the issuance of warrants of arrest, even if the deposit of diet money was at all necessary which, itself, is a doubtful matter because it was argued that for issuance of warrants of arrest it was not necessary to deposite the diet money of the defaulting witness. In this view of the matter, the adjournment of the case on 2.6.1977 to 4.7.1977 was not on the request of the appellants, but the same was occasioned due to non-service of the summonses issued to the witnesses of the appellants. Had the same not been issued and served on two of the private witnesses and the Process Server had not made reports regarding others, there would have been a little chance for observing that the appellants failed to make efforts to get them served under Order I6 Rule 7A. Such an observation, in the facts and circumstances of the case, is entirely based on misreading of the record.
9. It may be observed that after closing the evidence of the appellants the plaintiffs were given an opportunity to produce evidence in rebuttal, which could not have been given because no evidence was produced by the appellants. None cr the plaintiffs appeared as his own witness in affirmative .Idence, therefore, one of the plaintiffs availed of this opportunity and appeared as PW.7 and made a statement which he should have made while appearing in affirmative evidence. As a matter of fact, the appellants could not have been called upon to produce their evidence till such time the affirmative evidence by the plaintiffs was concluded, including the statement of one of the plaintiffs. Now since the evidence of one of the plaintiffs as PW.7 has already been recorded, the same shall be deemed to have been recorded in affirmative evidence and the appellants shall have an opportunity to produce evidence in rebuttal so that no prejudice on this accounts is caused to them.
10. As I have held the adjournment of the case to 4.7.1977 was not on the request of the appellants but the same was in routine, the penal provision of Order 17 Rule 3 CPC was not attracted. It need not be over-emphasised that such a penal provision of law is to be strictly observed and followed before penalty is inflicted on a party, after holding that it was a defaulter. It appears that the learned trial Court failed to apply its judicial mind to the question of applicability of the provision of Order 17 Rule 3 CPC and on the wrong assumption of facts applied the said provision of law which has resulted in miscarriage of justice and deprived the appellants of their valuable right to defend the suit. The law requires that every party should be given a fair opportunity to produce evidence in support of its case, which in the case of the present appellants was not given.
11. Apart from the above findings, even if it is held that the adjournment of the case to 4.7.1977 from 2.6.1977 was at the request of the appellants, even then the Court was required to decide in a judicious manner about the application of Order 17 Rule 3 CPC. It is firmly settled law that where a discretion isconferred on the Court to pass an order, the same is not to be exercised arbitrarily and whimsically; the Court is required to exercise the same judiciously. The learned trial Court acted highly arbitrarily in applying the provision of Order 17 Rule 3 CPC, in the facts and circumstances of this case. The order dated 4.7.1977 closing the evidence of the appellants, for the foregoing reasons, is not sustainable which is liable to be set aside. Since the said order has adversely affected the final judgment passed in the case by the learned trial Court, it is also not sustainable.
12. For the foregoing reasons, this appeal is accepted, the judgments and decrees passed by both the Courts below dated 18.3.1978 and 11.7.1987 respectively are set aside and the case is remanded to the learned trial Court for disposal in accordance with law, after affording an opportunity to the appellants to produce their evidence. The parties are left to bear their own costs.
13. The case is entrusted to the Court of the learned Senior Civil Judge, Layyah. The parties are directed to appear before the said Court on 15.10.1991 which should decide the case within the next sue months.