' This Constitutional petition is directed against the order of the Judge, Family Court, Lahore dated 17-10-1991 whereby the evidence of the defendant/petitioner was closed and the suit of the plaintiff/respondent decreed.
2. Mst. Mehreen Hayat respondent brought a suit for dissolution of her marriage making various 'allegations against the petitioner. The suit was instituted on 26-1-1991. It was contested by the petitioner who filed the written statement on 3-6-1991 when the case was adjourned to the following day for the purpose of reconciliation between the parties. The reconciliation proceedings ended in failure and the learned Judge, Family Court proceeded to frame the following issues arising out of the pleadings of the parties, on 4-6-1991:- ISSUES:
(1) Whether the plaintiff has no cause of action to file this suit? OPD.
(2) Whether the father of the plaintiff is not allowing the plaintiff to live with the defendant as his wife and he wanted that the defendant should purchase land in the name of the plaintiff and father of the plaintiff and import a Pajero jeep and pay Rs,5 lacs which was refused by the defendant? OPD.
(3) Whether the defendant humiliated the plaintiff after the marriage during the period of cohabitation? OPP.
(4) Whether the defendant did not pay attention to his daughter, if so its effect? OPP.
(5) Whether the defendant was already married and has three children in Tokyo? OPP.
(6) Whether the defendant failed to pay maintenance to the plaintiff since 13-2-1990? OPP.
(7) Whether due .To misbehavior and mental torture allegedly given by the defendant, the plaintiff has developed extreme hatred for him and she is entitled to Ithulai OPP.
(8) Relief. ' and adjourned the case to 26-6-1991 for evidence. On 26-6-1991, the respondent/plaintiff produced and concluded her evidence and the case was adjourned to 15-9-1991 for evidence of the petitioner. On that date, however, request for adjournment was made for the purpose of compromise. The request was granted and the case adjourned to 12-10-1991 for compromise or in the alternative for the petitioner's evidence. On 12-10-1991, .The petitioner's counsel sought another adjournment stating that certain matters remained to be sorted out and that if the settlement could not be reached, this adjournment would be considered as adjournment for his evidence.
Request was allowed and the case was adjourned to 17-10-1991 making it clear to the petitioner that in case of dispute not being settled, this would be the last chance for him to produce his evidence. On 17-104991, counsel for the petitioner moved two applications, one containing some proposal for compromise and the other for adjournment on account of non-availability of petitioner's witnesses due to sickness. Learned counsel for the petitioner further contended that the petitioner was out of the Country and sought adjournment for this reason also. Counsel for the respondent resisted the request made by the petitioner's counsel and prayed that since this was the last opportunity given to the petitioner for producing evidence which he had failed to avail, his evidence may be closed. It was urged that the petitioner was avoiding to produce the evidence.
Learned Judge, Family Court observed that "The defendant who is away from the country seems to be disinterested in pursuing the case. The proposal could be put at the time when the matter was fixed for reconciliation. The family suit which was filed on 26-1-1991 is pending for a period of more than 8 months". The learned Judge thus proceeded to close the evidence of the petitioner and decreed the suit of the plaintiff-respondent vide the impugned order.
3. Learned counsel for the petitioner assailed the validity of the impugned order of the Family Court on two grounds. His first contention was that the learned Judge, Family Court did not given proper opportunity to the petitioner for producing the evidence and acted arbitrarily in closing his evidence. According to learned counsel only one adjournment was granted at the petitioner's request on 12-10-1991 and that, too, for only five days and on the adjourned date viz. 17-10-1991, his evidence was closed even though he had shown sufficient cause for not producing the evidence on that date as his witnesses had fallen ill and were thus unable to appear, in Court. I am afraid, the grievance made by the learned counsel is not quite well based. The aforenoted resume of the proceedings which is borne out by the order-sheet of the trial Court placed on this file quite clearly shows that ample opportunity was allowed to the petitioner for producing his evidence. It may pertinently be noted that the plaintiff-respondent, concluded her evidence on the very first date and then the case was adjourned for about three months for petitioner's evidence and thereafter he was allowed two more opportunities for producing his evidence. In the circumstances, he cannot make any legitimate complaint of want of proper and adequate opportunity to adduce evidence. Similarly, he also cannot legitimately make a grievance of his evidence being closed on 17-10-1991. Learned counsel is not quite correct in contending that the case was adjourned only once at the petitioner's request. It appears that even on 15-9-1991, request for adjournment for the purpose of compromise was made by the petitioner. It is so observed by the learned trial Judge in para. 2 of the impugned order wherein it is stated that "defendant sought adjournment for compromise......". Order dated 15-9-1991, too, does not manifestly indicate that the request for adjournment was made by both the parties. Be that as it may, even if it be assumed that on 15-9- 1991 case was adjourned at the request of both the parties, yet since the compromise was not brought about, petitioner should have, produced the evidence on 12-10-1991 as directed vide order dated 15-9-1991 but he admittedly did not produce any evidence on 12-10-1991 and sought another adjournment with an undertaking to produce his evidence on the next date treating this adjournment as an adjournment for his evidence. Despite his undertaking, he failed to produce his evidence even on 17-10-1991 which was the last opportunity granted to him for that purpose and instead sought further adjournment on more than one pretext. In the circumstances, the learned trial Judge rightly took the view that the petitioner was not interested in pursuing his case and proceeded to close his evidence. It may pertinently be noted that the plea advanced before the trial Court that the petitioner had gone out, of the country pressing it as a ground for adjournment was patently false as the petitioner has now stated in the writ petition "the petitioner/defendant was not away from the country. It was also incumbent upon the learned Judge, Family Court to give at least an opportunity to the petitioner/defendant to get his own statement recorded." Refer ground (F) of the writ petition. It appears that the stand taken by the petitioner before the trial Court for seeking adjournment has been disowned by him in the writ petition with a view to press the point that he was at least entitled to an opportunity to get his own statement recorded, It may, pertinently be observed that no such request was made before the trial Court nor could it be made as the position taken then was that he had gone out of the country. The learned trial Court also rightly brushed aside the proposal for compromise put forward on behalf of the petitioner on 17-10- 1991 with a view to seek adjournment with the observation that it could have been put up at the time when the case was fixed for reconciliation. The learned Judge thus closed the petitioner's evidence for good reasons and after duly attending to the pleas advanced by him for seeking further adjournment. Needless to observe that since the petitioner had admittedly obtained adjournment on 12-10-1991 with an undertaking to produce the evidence on the next date in case the dispute was not settled between the parties and he clearly defaulted in producing the evidence on the adjourned date, the learned trial- Court acted lawfully in closing the petitioner's. Evidence. Be that as it may the matter of adjournment and closing of evidence undoubtedly rested in the Court's discretion which in the facts and the circumstances of the present case noted hereinabove has been exercised reasonably and judiciously and not arbitrarily or capriciously and, therefore, the impugned order of the family Court refusing to further adjourn the case and closing the petitioner's evidence is not open to any interference in writ jurisdiction.
4. Learned counsel for the petitioner next contended that the learned Judge, Family Court erred in law in decreeing the wit of the plaintiff/respondent forthwith after closing the petitioner's evidence without adverting to the evidence already brought on record and without coming to any conclusion whether on the material available on the record, the plaintiff was entitled to a decree for dissolution of marriage and if so on what ground. In the submission of the learned counsel, the suit of the respondent could not be decreed summarily as a measure of penalty to the petitioner for his failure to produce the evidence in rebuttal, This' contention of the learned counsel appears to have considerable force. It is settled law that even a decision under Order XVII, Rule 3, C.P.C.
Should be on the merits of the case based on the evidence/material available on the record. The words used in Rule 3 of Order D XVII "proceed to decide the suit forthwith" quite clearly show that when proceeding under this provision, the 'Court is to record the decision on merits on the basis of whatever material has been produced in evidence till then. It was so held in Mst. Zaitoon Begum and 2 others v. Muhammad Ilyas and 6 other's PLD 1971 Lah.
143. Similar view was expressed in Bahadar Shah and others v. Sharaf Major and others PLD 1967 Lah. 154, wherein if was held thata decision "forthwith". Under Rule 3 of. Order XVII has to be a decision on the merits. "It. Must be on consideration of such Material on the record as is necessary.
It does not at all, mean that it should. Be summary decision." A judgment based on no evidence is no judgment in the eyes of law. In Sh. Inayatullah v. Mian Abbas Ahmed Khan, and another: 1970 SCMR 130, the Supreme Court of Pakistan observed that an ex parte decree passed .Without :any evidence being recorded and thus based on no evidence has no value in law". Viewed in this light, the impugned order. Of the Family Court in so far as it decreed the respondent's -snit without adverting 'to and discussing the evidence/material available on the record and without recording any finding on, the relevant issues in the light of the evidence on the record cannot be' sustained in law.
5. In view of what has been said above, the impugned order of the learned Judge, Family Court dated 17-10-1991 in so far as it decreed the suit of the plaintiff/respondent without adverting to and discussing any finding on the relevant issues is declared to be without lawful authority and of no legal effect and the case is remanded to the learned District Judge, Lahore for entrusting it to a'
Family'Court other than the onepresided over by. Mr. Khalid:Mahtnood Cheema, Civil Judge who passed the impugned order, for fresh decision on Merits after duly considering the evidence/material already available on the record. Writ petition is allowed only to'this extent with.No order as to costs.