JUDGMENT MUNIR A. SHEIKH, J. - The plaintiff appeals against the judgment and decree dated 22.5.1991 passed by the learned Civil Judge lst Class. Lahore, whereby her suit for possession through specific performance of agreement of sale dated'1.10.1983 has been dismissed for want of affirmative .Evidence.
2. The facts relevant for the disposal of this appeal shortly stated are that on 11.10.1986 the appellant filed suit for possession of property in dispute i.e. House No. 170, G.T. Road, Baghbanpura through specific performance of - agreement of sale dated 1.10.1983. It was contested by the respondents.
Issues were framed on 20.10.1987 and the case was fixed for 15.12.198? For recording the evidence of the appellant. She was directed to submit list of witnesses within seven days. Before the said date, the appellant made an application on 25.11.1987 for summoning the expert witness on which notice was ordered to be issued to the respondents for 15.12.1987. On 15.12.1987, evidence could not be recorded because application of the appellant for permission to produce hand-writing expert was- to be decided first. This application was ultimately decided through order dated 4.7.1988 by which the appellant was permitted to examine the hand writing expert as witness and the case was fixed for 10.10.1988-for recording her evidence. On 19.7.1988 another application was filed by the appellant that the disputed signatures may be sent for comparison to the Expert with the admitted signatures and an order was passed on 19.7.1988 for sending the signatures for comparison to the Expert and the Expert was directed to submit his report on 10.10.1988 i.e. The date already fixed in the suit. On 10.10.1988 the case was adjourned for 28.11.1988 to await the report of the Expert. On this date also, the report was not submitted, therefore, the case was adjourned to 30.10.1988. The case continued to be adjourned for submission of the report of the Expert and before the same was submitted the suit was transferred to some other Court. The transferee Court on 17.9.1989 observed that the report of the expert had not been received and with the concurrence of learned counsel for both the parties. It was ordered that the appellant should produce other evidence. The case was adjourned to 6.12.1989 for recording the evidence of the appellant on which date a request for adjournment was made on the ground that the witness had fallen ill. It was adjourned to 13.1.1990 on 13.1.1990. The evidence of the appellant could not be recorded because an objection was raised on behalf of the respondents learned counsel that the power of attorney of the plaintiff/appellant's learned counsel had lapsed with the death of the plaintiff, therefore, he should procure fresh authority to prosecute the suit. The case was then adjourned to 27.1.1990 for hearing arguments on this legal objection. On 27.1.1990 learned counsel for the appellant filed fresh power of attorney and the case was adjourned to 20.2.1990 for recording the evidence of-the appellant. On this date evidence of the two witnesses of the appellant was recorded. On behalf of the respondents an application under Order 7 Rule 11 CPC was filed and the case was adjourned to 27.2.1990 for filing reply to the said application: On that date, reply was filed and the case was adjourned to 7.3.1990 for arguments on the said application. On 7.3.1990 learned counsel for both-the parties jointly requested for adjournment of the case as they were not ready to address arguments on the said application. It was adjourned to 21.3.1990 on which date also learned counsel for both the parties made joint request for adjournment. The case was adjourned to 29.3.1990 on which date arguments were heard on the said application and the case was adjourned to 1.4.1990 'for announcement of orders. On 1.4.1990 the application was rejected and the case was fixed for 23.6.1990 for recording the remaining evidence of the appellant. On 23.6.1990 evidence could not be recorded as the learned Presiding Officer of the Court had been transferred. 'the Reader of the Court adjourned the case to 11.7.1990 for evidence of the appellant. On 11.7.1990, the case was adjourned to 26:11.1990 because learned counsel for the appellant was indisposed-. On 36.11.1990, the learned Presiding Officer of the Court was on leave and the Reader of the Court adjourned the case, to 22.1.1991, for evidence of the appellant. On 22.1.1991 a request was made on behalf of the appellant for adjournment of the case. The learned trial Court adjourned the Case to 24.3.1991 with the observation .That it was the last opportunity granted to the appellant for production of evidence. On 24.3.1991 the learned Presiding Officer, of the Court was on leave and the Reader of the Court adjourned the case to 22.5.1991 lor the evidence of the appellant. On 22.5.1991 the appellant did not produce evidence and her request for another adjournment was declined by the learned trial Court. The, learned trial Court proceeded to close the evidence of the appellant under Order 7 Rule 3 CPC and dismissed the suit, for want of affirmative evidence. This judgment and decree has been assailed in this appeal.
3. We have undertaken detailed scrutiny of the learned trial Court's record with the assistance of the learned counsel for both the parties, it is evident from the narration of alone facts emerging from the record that a number of adjournments were caused either on account of the learned Presiding Officer of the trial Court being on leave or deciding the application moved, by the appellant for permission to produce expert witness and .Sending disputed signatures for comparison with the admitted signatures to hand writing expert, awaiting his report and for disposal of application moved by the respondents under Order. 7 Rule 11 CPC at the state when .
The evidence of two witnesses of the appellant had already been recorded. We have also noticed that the date on which learned Presiding Officer of the Court was on leave or was not present on account of his having been transferred and new incumbent not having taken over the charge, the Reader of the Court adjourned the Case for evidence of the appellant without either the approval of the Duty Judge or complying with the provisions of Order 17 Rule 5, CPC. This aspect of the case gains 'significance in the facts and circumstances of this case because the question has arisen as to whether the learned trial Court could close the evidence of the. Appellant. Oder 17 Rule 5 CPC is as follows:- " Appearance of parties on the day when the Presiding Officer is absent.
When on any day the Presiding Officer of the Court is absent by reason of illness or any other cause, the parties to the suit or proceedings set down for that day (notwithstanding the knowledge that the Presiding Officer would be absent) shall appear in the Court in the Court-House on that day and the ministerial officer of the Court authorised in that behalf shall hand over to the parties slips of paper specifying the other date fixed for proceedings with the suit or proceeding and signed by him."
On 24.3.1991, as observed above the learned Presiding Officer of the trial Court was on .Leave. The Reader of the Court being ministerial officer was empowered to adjourn the case for recording evidence only if he was authorised to do so in that behalf after handing over to the parties, slips of- paper specifying the date fixed in the suit for evidence. There is nothing on the record to show that he was so authorised and if so, that he had delivered slips of paper to the parties embodying the date fixed for recording the evidence, In our view, in these circumstances the adjournment of case by the Reader of the Court to 22.5.1991 for recording evidence of the appellant was not validly made, as such. The same could not legally be construed to be a date on which failure to produce evidence should be visited with the penally of closure of her evidence and dismissal of her suit. This view is in accord with the rule laid down in judgments reported as E A. Evans v. Muhammad Altaf (PLD 1964 S.C. Page 536) and Malik Abdul Ali v. West Pakistan Publishing Company (Pvt.) Ltd. (PLD 1965 (W.P.) Lah. Page 82) that where a power is given to do a certain thing in a certain way the thing must be done in that way and other methods of doing are necessarily forbidden. It may also be mentioned here that before applying the penal provision of a Statute, the Court is required to see that the necessary' conditions prescribed by law had been satisfied.
4. Apart from what has gone before, according to the firmly settled law as declared by the Supreme Court in judgments reported as Moulvi Abdul Aziz Khan Mst. Shah Jahan Begum and 2 others (PLD 1971 SC 434), Jindwadda and others r. Abdul Hamid and another (PLD 1990 SC 1192) and Qutab-ud-Din v. Gulzar and 2 others (PLD 1991 SC 1109), provisions of Order 17 Rule 3 CPC could not be invoked on date which was not fixed on the request of the defaulting party. It has thready been observed that on 24.3.1991 the learned Presiding Officer of the Court was on leave, therefore, adjournment of the case to 25.5.1991 was not made on the request of-the appellant, as such, on that date no order could be passed for closing his evidence Under the said provision of law.
5. For the foregoing reasons this appeal is accepted. The judgment and decree dated 22.5.1991 passed by the trial Court are set aside and the case is remanded to it for a fresh decision on merits in accordance with the-law. There will be no order as to costs.
6. Learned counsel for the appellant requests for issuance of certificate for the refund of the amount of the Court-fee affixed on the Memo, of Appeal. Since the appeal has succeeded on a point of law and no determination of rights of the parties has been made, the appellant. Is hereby granted certificate as envisaged by Section 13 of the Court Fees Act, for the refund of the amount of the Court-fee affixed on the Memo, of Appeal.