' There are two cross-suits filed by the petitioner and the respondent .Against ore another. The respondent's suit is for specific performance of a contract to sell the property in dispute while the petitioner's suit is for cancellation of that very contract. Both these suits were consolidated. The parties were given several opportunities to produce their evidence up to the 4th of May, 1974, but for one reason or the other it was not produced. On the 4th May, 1974, it was stated that the parties were negotiating a compromise. The case was then adjourned for evidence of the parties to the 19th of June, 1974. On that date the Court found that summonses had not been served on account of the negligence of the plaintiff-petitioner. However, an opportunity was given to him to produce his evidence on the 29th of July, 1974, on his own responsibility on payment of Rs, 30 as costs. The next date was fixed only for the evidence of the petitioner. The petitioner did not produce his evidence on that date too and made a request for adjournment of the case. The Court mistakenly fixed the case for evidence of the parties purporting to act on their joint request. It was held that it was a case of negligence. On the 22nd of October, 1974, the learned trial Court acting under Order XVII, rule 3, C. P. C. Closed the evidence of the petitioner and allowed the respondent to produce his evidence on the 2nd of November, 1974. It appears to me that on that date the Court had noticed that there was no occasion on the last date for the respondent to apply for adjournment since it was not a date for his evidence and as such no action under Order XVII, rule 3 could be taken against him. Evidently it is for this reason that only the plaintiff-petitioner's evidence was produced.
This petition calls in question the order of closure of the evidence of the petitioner.
2. The case was admitted to a regular hearing since it was argued before we that the suit was not adjourned on the last date on the request of the petitioner. This contention has been proved to be incorrect by a perusal f the record. The learned counsel, therefore, argued that : Firstly, since the learned trial Court was not in a position to decide the suit forthwith it could not take any action against the petitioner under Order XVII, rule 3, C. P. C., and Secondly, the petitioner having summoned one of the public servants the responsibility of serving him could not be placed upon him; on the other hand the Court should have issued summonses through its process-server and should have got the witnesses served in the same manner as a defendant is served. In support of this, ho relied upon Abdul Ghani and another v. Mst. Nur Jehan and others 1976 Law Notes 598.
3. The first proposition is without force in view of the interpretation of the word "forthwith". In Abdul Aziz Khan v. Shah Jehan Begum (1) it was held that the words in rule 3 of Order XVII, C. P. C. That in case of non-production of evidence of a party to a suit to whom time has been granted the Court "may proceed to decide the suit forthwith", cannot justify the interpretation that the suit must be decided on the same day. Their Lordships took into consideration the ordinary dictionary meaning of "forthwith" as meaning within a reasonable time and held that the reasonable meaning is that the Court should proceed to decide the suit within a reasonable time in the circumstances of the case.
4. In the circumstances of this case the reasonable time would mean the time spent in affording a reasonable opportunity to the defendant-respondent to produce his own evidence since he happens to be a plaintiff in the cross-suit. The first contention is, therefore, repelled as being without force.
5. The authority relied upon by the learned counsel in support of the second proposition is distinguishable on facts. It was a case in which the witnesses had been served, which means that in case of his non-appearance the Court could not but act under the provisions of Order XVI, rates 10 and 12, C. P. C. It was further held that in these circumstances there was no occasion to put the burden on the appellants to keep the witness in attendance till the time the Court was inclined to record his statement. While considering the first point an observation was made that a public servant could not be dragged by the appellant for evidence without assistance of the Court and therefore his production on his own responsibility was unwarranted. This observation cannot apply to a case decided after the enforcement of the Law Reforms Ordinance, 1972, which was enforced from the 21st as of April, 1972 in view of the provisions of Order XVI, rule 7-A added to the Civil Procedure Code. The case relied upon by the learned counsel was a case in which the order of closure of evidence had been passed in the year 1968 when the Law Reforms Ordinance was not in force.
6. Rule 7-A of Order XVI, C. P. C. Provides that : "(1) Except where it appears to the Court that summons under this Order should be served by the Court in the same manner as summons to a defendant the Court shall make over for service all summonses under this Order to the party applying therefor.
' The clear meaning of this provision is that the rule is to make over summons for service to the party applying therefor unless this rule is departed from in a given case by a specific order of the Court that summonses should be served by the Court in the same manner as summons to the defendant. There is no order in this case to the latter effect. It is true that one of the witnesses summoned by the petitioner is a Patwari and he has been summoned regularly since March 1972. It is also true that the petitioner had deposited the process fee for the service of four witnesses including the Patwari who is a public servant on the 31st of July, 1974. There is, however, no indication on the record whether the summonses were taken by the petitioner for due service. All the same there is no order by the Court that these summonses should be served in the manner of service of summons on a defendant, nor is there any request to this effect by the petitioner. Under the law, therefore
(1) PLD 1971 SC 434 the petitioner was expected to take the summonses for service. If he had taken these summonses with him it was for him to show reasons why they could not be served by him. No such reason was shown to the learned Courts below. On the other hand, if he had not taken the summonses he could not place reliance upon the mere deposit of the process fee since he failed to go forward and ask the Court to hand over the summonses to him. It was, therefore, a case in which the petitioner had failed to pro Rice evidence in spite of time being granted to him. The matter is covered by Order XVII, rule 3, C. P. C.
7. There is another question whether in the circumstances of this case the Court could exercise its discretion against the petitioner. This is not a point on which interference is possible in exercise or the revisional jurisdiction. The exercise of discretion can be challenged by the petitioner in an appeal, that may be ultimately filed against any decree passed in the case.
8. The petition is without force and is dismissed with costs.