' This appeal has been filed against the judgment and decree of the District Judge, Kotli, passed on June 5, 1995, whereby the appeal against the order of Sub-Judge, Fatehpur Thakyala, dismissing the suit of the plaintiff-respondent, was accepted and the case was remanded to the trial Court.
2. The facts, briefly stated, are that a suit for declaration with regard to the suit land was filed by the plaintiff-respondent, in the Court of Sub-Judge, Fatehpur Thakyala, on September 8, 1990. It was claimed that the plaintiff was owner of the suit land. The power of attorney and sale-deed executed on April 7, 1953 and May 24, 1953 respectively were illegal, ineffective and inoperative against the rights of the plaintiff. It was also claimed that the gift-deed registered on January 31,1990 by defendant No,1 in favour of defendant No,2, was also illegal and inoperative against the rights of the plaintiff. The suit was resisted by the Opposite side. Necessary issues arising out of the pleadings of the parties were framed. The plaintiff's suit, after providing him number of opportunities, was held to be dismissed for want of proof. However, an appeal filed by the plaintiff- respondent was accepted by the District Judge and setting aside the order of the trial Court, the case was remanded to it, for its disposal under law. The present appeal is filed against the aforesaid order of the District Judge.
3. Mr. Ghulam Mustafa Khan, the learned counsel for the appellants raised the following points in support of his assertions:-
(i) That the plaintiff-respondent was provided with number of opportunities to produce his evidence but except on December 30, 1992 when the evidence of Patwari witness was recorded, he failed to avail the other opportunities. The learned trial Judge after due consideration, proceeded to dismiss the suit, deciding it forthwith;
(ii) that the suit of the plaintiff-respondent was frivolous one which was filed to challenge the power of attorney and sale-deed executed in the year 1953. The plaintiff filed the suit to burden the defendants unnecessarily;
(iii) that the learned District Judge, without looking into the facts and circumstances of the case, accepted the appeal against law; and
(iv) that the learned District Judge relied upon an affidavit filed in the Court of District Judge by the plaintiff-respondent which could not have been the basis for acceptance of the appeal.
4. On the other hand, Raja Muhammad Matloob Khan, the learned Counsel for the respondent, controverting the arguments advanced by the learned counsel for the appellants, maintained that the order passed by the learned Sub-Judge was illegal, It was also argued that the learned trial Judge proceeded to dismiss the suit at the early hours of the day. It was further argued that matter was decided on the same day which ordinarily should have been decided after adjourning the case for a reasonable time. The order passed by the District Judge was defended as having been recorded keeping in view the facts and law. The learned counsel contended that the evidence of the plaintiff's witnesses could not be recorded due to defendants or their counsel, as such the plaintiff could not be penalised for no fault on his part. The learned counsel referred to PLD 1971 SC 434, in support of his assertions.
5. I have heard the learned counsel for the parties and also gone through the record. The suit was filed on September 8, 1990. Issues were framed on March 26, 1991 and after hearing the learned counsel for the parties on legal issues, the plaintiff-respondent was directed on June 8, 1992, to lead his evidence, on June 30, 1992. Since then to July 10, 1993, the plaintiff was provided as many as 13 opportunities for production of his evidence. Except on December 30, 1992 when the evidence of Patwari-witness was recorded, the plaintiff failed to avail the other opportunities. After providing more than sufficient time and opportunities, the trial Court at the request of the plaintiff, allowed him an opportunity on payment of costs on June 14, 1993. On the aforesaid date, the plaintiff- respondent failed to produce any evidence as such also failed to avail the opportunity for which time was granted to him. Therefore, the learned trial Judge dismissed the suit, deciding it forthwith.
6. It may be mentioned that under Order 17, Rule 3, C.P.C., the Court providing any party to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary for the progress of the suit for which time was allowed, if fails to produce evidence or to perform that act for which time was allowed, may proceed to decide the suit forthwith. The term "decide forthwith", refers to the decision within a reasonable time under the circumstances and the Court may decide the suit on the same day. It may also be mentioned that the decision should be on merits. The application of the above Rule is in the nature of an exception to the general provisions contained in Rule 2 which applies to the cases where the adjournment is generally granted not for specific purpose, while this Rule applies where the adjournment is granted for any of the purposes mentioned in the rule. The other distinction is that Rule 2 of Order 17, C.P.C. Applies where the party fails to appear at the hearing but Rule 3 even applies where a party is present but has committed any of the defaults mentioned in the rule. There may be some cases to which both the rules Nos.2 and 3 are applicable. In such matters, the Court should proceed under Rule 2 instead of Rule 3, i,e, either adjourn or proceed under Order 9, C.P.C. Which is a lesser penalty.
7. The plaintiff, in the present case, was provided more than sufficient time and opportunities to produce his evidence and was finally given an opportunity on payment of costs, at his own request.
After availing such number of opportunities and failing to produce his evidence, the trial Court had no option but to decide the case under the circumstances forthwith on merits. The arguments raised with regard to the adjournment of the case on two occasions due to defendants, is also of no avail to the plaintiff-respondent for the simple reason that even after that, the plaintiff was provided more than 3 opportunities to produce his evidence, including the one granted to him at his request on payment of costs. The learned District Judge mainly based his order on the affidavit filed by the plaintiff-respondent at the time of final hearing before him, claiming exception for his non-appearance on account of heavy rains on the date of hearing in the trial Court. The reliance of the subordinate Court on such evidence is not borne out of any record. It may also be mention decide the suit under the above eventualities. The observation, apart from the fact that it is against the record available, is also not supported by any law to hold as such, as the parties are required to appear before the Court and prosecute their cases when those are called for hearing. The authority cited by the learned counsel for the respondent, referred to above, does not support his assertion, rather it supports the case of the appellants, wherein it was observed on pages 434 and 435, as under: -- "--This rule applied to a case where time has been granted to a party at his instance, to produce evidence, or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted.
' The word ' forthwith' does not mean on the same day. The reasonable meaning of this word in the context of Order XVII, rule 3, C.P.C., is that the Court should proceed to decide the suit within a reasonable time under the circumstances of the case."
Therefore, keeping in view the principle enunciated in the above authority, the point raised by the learned counsel for the respondent merits no consideration as the word "forthwith" does not mean to decide the suit on the same day but it may be decided within a reasonable time.
8. In view of the above discussion, it is safely held that the order passed by the District Judge is not maintainable which is hereby set aside by accepting the appeal. Consequently, the order of the trial Court is restored.