' This appeal under section 96 of C.P.C. Is directed against the judgment and decree dated 8-3- 1990 passed by First Senior Civil Judge Nawabshah in F.C. Suit No,175/1984 (Yaqeen Ali & Co. v.
Province of Sindh and others), whereby the suit of appellant was dismissed under Order 17, rule 3, C.P.C.
2. The facts as disclosed in the plaint are that the plaintiffs are registered Firm engaged in different types of contracts of Local Councils. The respondent No,3 (District Council Nawabshah) vide Notification No,DA/AB/325 dated 13-9-1981 published in the Gazette dated 24-9-1981, levied Export Tax on goods exported out of District Council limits with effect from 12-10-1981. The appellants being the highest bidder was given the lease of rights to collect. Export tax under the Export Tax Rules with effect from 25-10-1981 to 30-6-1982. Such agreement between appellant and respondent No,3 was executed on 24-8-1981.
3. The respondent No,2 exported Wheat from Nawabshah District to various places without payment of export tax. It was stated that wheat so exported was liable to tax at the rate of Rs,60 per quintal of 100 K.G. Since the respondent No,2 failed to pay the Export Tax, a demand for payment thereof. Was made through notice dated 12-54982 followed by another notice under section 80 of C.P.C., dated 1-6-1982. It was stated that persuant to the notices, the appellant was informed by the respondents through their Budget and Accounts Officer that undertaking to the local council had been given by them to ensure payment, pending decision by Government, with whom the matter was pending for grant of exemption from Export Tax. It was also pleaded that the appellant repeated his demand through yet another notice dated 6-7-1982. The respondent No,1 informed the respondent No,2 vide letter dated 11-8-1982 that the respondent No,3 is liable to pay Export Tax on wheat and that it should be paid. The claim of the appellant/plaintiff was that the respondents had failed to pay export tax on 288,111 bags of wheat and they were liable to par a sum of Rs,172,866.60 with interest at 14% per annum with effect from 12-5-1982.
4. The written statement was filed by respondents 2 and 3 and they denied the claim of the appellant. It was pleaded that vide letter dated 29-10-. 1983, of the Government of Sindh, the respondent No,2 was exempted from payment of export tax. With regard to the letter dated 12-5- 1985 issued by respondent No,3 to respondent No,1, it was stated that it was on account of an act of cooperation and the letter of Budget and Accounts Officer Food Department, Government of Sindh, was not binding on the respondents Nos.2 and 3. The matter of exemption from export tax on wheat was under consideration of the Government of Sindh and ultimately it was decided that export of wheat from outside District Nawabshah was exempted from levy of export tax vide letter No,So-II-I (31)/81 dated 29-10-1983. Similar stand was taken by the respondent No,2 in the written statement. He further stated that the Governor/MLA had ordered the exemption of tax on . Export of wheat, moving on Government account and he produced two letters dated 22-7-1984 and 17-10- 1984. The copies of these letters were also sent to the appellant.
5. On such pleadings of the parties, the trial Court on 15-9-1985 settled the following issues:-
(i) Whether the suit in its present form is not maintainable?
(ii) Whether the suit is not legally maintainable?
(iii) Whether no cause of action accrued to the Plaintiffs to bring this suit?
(iv) Whether the suit is hit by estoppel, waiver and acquiescence?
(v) Whether the Plaintiff is a registered Firm. If not, what is its effect?
(vi) Whether the defendants are liable to pay Rs,1,72,866.60, to the plaintiffs as arrears of export tax on wheat?
(vii) What should the Decree be?
6. Thereafter the suit was set down for evidence of the appellant on 19-10-1985 and onwards. As the plaintiff failed to produce their evidence on number of dates, the suit was dismissed under Order 17, rule 2, C.P.C. On 27-11-1988. However, on an application for restoration under Order 9, rule 9, C.P.C., the suit was restored to file by order dated 22-2-1989 and a cost of Rs,500 was imposed on the appellant.
6-A. Even after the restoration of the suit, the appellant/plaintiff failed to bring evidence but sought adjournments, one after the other, including number of last chances given to him. The main ground in the adjournment applications had been, that the Attorney of the appellant's company was not able to come from Karachi. The appellant had also summoned a clerk of Food Department to produce the record favourable to him and from 10-7-1989, the said clerk was in attendance on various dates but the appellant failed to examine either himself, the said clerk or any other witnesses, to prove his case.
7. On 8-3-1990 the suit was fixed for the evidence of the appellant but on this date again an application was moved on the similar grounds as were being mentioned on previous dates. The trial Court rejected the application for adjournment and decided the suit under Order 17, rule 3, C.P.C. Through the judgment and decree now impugned.
8. Mr. Gulab M. Rang, the learned Advocate for the appellant has contended that on 8-3-1990, when the suit was dismissed, the Advocate from Karachi had left for Nawabshah to proceed with the matter and evidence was also available but due to some problem on the way with the car, they reached the Court after Court hours. Thus according to him the absence of appellants on that date was neither wilful nor intentional: He'has also contended that the learned trial Court should riot have proceeded to decide the suit under Order 17, rule 3, C.P.C. But should have dismissed the suit under Order 17, rule 2, C.P.C. Because there was no material before the trial Court to decide the suit on merits.
9. In support of his contention, the learned Advocate has placed reliance (i) PLD 1963 Karachi 356 Abdul Shakoor v. Abdul Rasool, (ii) 1991 CLC 1164 Ghulam Rasool and 3 others v. Mahboob All and another, (iii) PLD 1971 Lahore 143 Mst. Zaitoon Begum and 2 others v. Muhammad Ilyas and six others, (iv) AIR 1955 Madras 258 Natesa Thevar v. Vairavan Servaigaran, (vi) AIR 1964 Patna 142 Dr. M.P. Sinha v. Life Insurance Corporation of India and another, (vi) AIR 1939 Madras 974 Paruri Venkateswa ra Rao v. Parvataneni Subrahmanya. I would now advert to the case-law referred.
10. In (i) above, it was observed that the distinction between rule 2 and rule 3 of Order 17 is that while rule 2 applied to hearings adjourned at the instance of the Court, rule 3 applied to hearings adjourned at the instance of a party, to whom time was allowed to do some act to further progress of the suit, but who has defaulted. There is yet another distinction between rules. Where there are no materials on the record, the proper procedure to be followed would be as laid down in rule 2, but if there are materials on record, the Court ought to proceed under rule 3. To apply the procedure, therefore, laid down in rule 3 to a case, there must be presence of both the elements (1) the adjournment must have been at the instance of a party and (2) there must be material on the record for the Court to proceed to decide the suit.
11. In (ii) above, the facts were that the plaintiffs did produce evidence on the first date of hearing but failed to produce his evidence on the next date of hearing when their evidence was closed and their suit was dismissed. Failure to produce the evidence on that date was not intentional but due to sudden illness of their counsel. It was held that the trial Judge took extremely stringent view in applying penal Provisions of Order 17 (3), C.P.C. And case was remanded to the trial Court for fresh decision.
12. In (iii) above, it was held that when the evidence was not produced by either party on the date fixed for the purpose, and the plaintiffs' prayer for adjournment and further time was refused, the Court in such circumstances should proceed with the suit forthwith under rule 1 (3) and not to proceed to decide the suit forthwith under rule 3 of Order 17.
13. In (iv) above, it was observed that where the plaintiff though physically present in Court refused to take part in the proceedings after the dismissal of his application for adjournment, as represented by his counsel, he cannot be said to have been present there as partaking in the proceedings. His physical presence in the Court cannot be taken cognizance of, and the only conclusion that one can come to, is that he did not appear at the hearing. The case, therefore, comes under rule 2 and not rule 3 of Order 17.
14. In (v) above, it was held that where the party to whom time has been granted for producing evidence, fails to appear on the adjourned date, and there is no material on the record on the basis of which a decision can be arrived at, the Court has no alternative but to proceed under rule 2 of Order 17, but in case where there is material on the record of the suit on which a decision can be arrived at, the Court may proceed either under rule 2 or under rule 3.
15. In (vi) above it was held that the mere physical presence of the party on the day of hearing is no appearance in suit and does not take the case out of Order 9, rule 9, C.P.C. Similarly, the mere fact that the pleader who had no instructions to conduct the suit asks for adjournment, is not appearance in the suit whether he formally reported any instructions or not, if all that he did that day was to apply for adjournment and nothing more.
16. Mr.M.H. Burni, the learned Advocate for the Respondent No,3 has contended that besides the Advocate from Karachi appearing for the appellant, Syed Rashid Ahmed, a local Advocate of Nawabshah, was also engaged, and he appeared for the plaintiff. He has taken me through R &. P of the lower Court and shown that a number of applications for adjournment on behalf of the appellants were signed by Syed Rashid Ahmed, Advocate. Even on 8-3-1990, Syed Rashid Ahmed, Advocate for the Plaintiff, was present and so also a clerk of the Office of D.F.C., Nawabshah, who was summoned to give evidence. On this date again, the application for adjournment (Ex.96) was moved by Syed Rashid Ahmed Advocate, on the ground that the Attorney of Plaintiff has not conic from Karachi due to unavoidable circumstances. This application was rejected, and since the Plaintiff himself was absent and the application for adjournment was also dismissed, the trial Court was left with no alternative but to proceed with the suit under rule 3 of Order 17, C.P.C. The learned Advocate also pointed out from the record that the previous hearings were adjourned at plaintiffs request and the trial Court, therefore, correctly dismissed the suit under rule 3 of Order 17, C.P.C. He has referred to 1987 CLC 2389 Khan Muhammad and others v, Mst. Haleeman Bibi and 3 others, in which it was held that where the plaintiffs without any reasonable cause failed to produce any evidence oral or documentary in the suit, in spite of fact that they were allowed six opportunities by the trial Court, the order of trial Court closing plaintiffs evidence and proceeding to decide the suit forthwith, it was held that it could not be considered as harsh or unjust but in fact it was proper and no exception could be taken thereto.
17. The learned Advocate also referred to 1989 CLC 1425 Riaz Hussain and others v. Mureed Hussain and others where it was held that where time had been granted at the instance of the party to do any act enumerated in order 17, rule 3, C.P.C., and such party defaulted in performing that act and that for which time was granted, the Court could proceed to decide the suit on merits forthwith. It was also held that where plaintiffs were provided with utmost accommodation by the trial Court to enable them to produce their evidence about a dozen of times, the dismissal of suit for failure to produce the evidence was justifiable under the provisions of Order 17, rule 3, C.P.C.
18. I have heard the arguments of the learned Advocates as at length and gone through the case law referred and also seen the R & P of the lower Court. The suit was first dismissed on 27-11-1988.
However, on an application for restoration, it was restored to file on 22-2-1989. From this date till 8- 3-1990, when the suit was finally dispose of, 13 adjournments were taken most of them by the plaintiff. A clerk of the. Office of the D.F.C. Nawabshah summoned to give evidence on behalf of the appellant, was also in attendance from 10-7-1989 onwards. Neither plaintiff came forward to examine himself and to produce the documents relied upon, nor the clerk was examined. There are some applications for adjournment by the Respondent and the hearings were adjourned but on these dates even, neither plaintiff was in attendance nor he offered to adduce any evidence. The ground of adjournment on each date by the Plaintiff was that the attorney of Plaintiff could not reach from Karachi. Even on 8-3-1990 when the suit was dismissed through the impugned judgment, the same ground was mentioned in the adjournment application.
19. Order IX of C.P.C. Deals with "appearance of the parties and consequence of non-appearance".
Rule 8 of Order IX lays down the procedure where Defendant only appears when the suit is called on for hearing and the plaintiff does not appear, the Court shall make an order that the suit be dismissed unless the Defendant admits the claim or part thereof. The provisions of Order IX, Rule 8 apply when the parties make default on the first date of hearing, whereas Order 17, rule 2 and rule 3 apply when the plaintiff or Defendant have already appeared but have failed to appear at the adjourned, hearing of the case. Under Order 9, rule 8, the Court must dismiss the suit for non- appearance of the Plaintiff on the next date of hearing, but under Order 17 Rule 2, if the plaintiff is absent on subsequent hearing, the Court may either dismiss the suit for default or may make such other order as it thinks fit. Rule 3 of Order 17 provides that where any party to a suit to whom time has been granted failed 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. This provision is penal in nature and it can be pressed into service for deciding the suit finally on merits, on proof of default by the same party.
20. Admittedly, 8-3-1990 was the adjourned date and was fixed for evidence of the Appellant. The hearing of suit on the date previous to 8-3-1991 was also adjourned at the request of the Appellant's counsel engaged at Nawabshah. The ground taken in adjournment application on 8-3- 1990 was that the Attorney of Appellant had not reached from Karachi and the suit may be adjourned. There was no intimation by the local Advocate engaged by the Appellant that either the Attorney or the Advocate of Appellant from Karachi had left for Nawabshah and that they would proceed with the suit. The trial Court in these circumstances, correctly decided the suit under rule 3 of Order 17, C.P.C. As held in 1987 CLC 2389, where in spite of fact that Plaintiff was allowed 6 opportunities by the Trial Court, the order of trial Court closing his, evidence and 'proceeding to decide the suit forthwith was not considered as harsh or unjust but it was held to be proper and that no exemption could be taken thereto. Similar view has been taken in 1989 CLC 1425 referred to above.
21. With regard to the contention of Appellant's counsel that there was no material on the record on the basis of which a decision could have been arrived at on 8-3-1990 and the Trial Court could not have decided he suit under Rule 3 of Order 17, it shall suffice to say that the burden of proof of the important issues was on the appellant. Since he failed to appear or produce evidence or examine the Clerk in attendance, the trial Court had material before it in the nature of 13 adjournment applications, showing lack of appellants' interest to lead evidence, justifying dismissal of suit under rule 3 of Order 17 of C.P.C.
22. For the first time in appeal before this Court, it has been urged that the Advocate from Karachi alongwith Appellant's Attorney had left for Nawabshah but due to some trouble with the car, they reached Nawabshah after Court hours and were informed that the suit had been dismissed. Even on that date, no statement to that effect was placed on the file in spite of the dismissal of suit on merits. This ground seems to have been taken before this Court to cover up the lapses of the appellant when in fact no such ground was available.
23. The Appeal under section 96 of C.P.C. Is to be decided in accordance with the provisions laid down in Order XLI, rule 31, C.P.C. But, since, there was no evidence on record, it would serve no purpose to state the points for determination, the decision thereon or the reason for the decision.
24. In these circumstances, no exception could be taken to the findings of the Trial Court and the Appeal is accordingly dismissed, with no order as to costs.