This civil revision under section 115, C.P.C. Has been directed against order, dated 26-7-1997 passed by the Senior Civil Judge, Quetta in Civil Suit No. 140 of 1995 whereby the petitioners' evidence has been closed and the case was fixed for the statement of the petitioners/defendants.
2. The precise facts relevant for the disposal of the instant petition are to the effect that on 28-9- 1995 the respondent filed civil suit against the petitioners for recovery of Rs.Five crores by way of damages on the stated averments that in the weekly "Takbeer" dated 29-6-1995 an article was published (written by petitioner No.3) which contained false information and scandalous allegations against the respondent (who at the relevant time held office of Collector Customs, Quetta) with the designed object of causing injury to his reputation. The facts in detail in this behalf have been mentioned in the plaint. The petitioners filed their written statement on 9-11-1995 in the Court, contesting the claim of the respondent on the facts and grounds mentioned therein. On merits of the case mainly it has been averred in the written statement that the objected article of weekly "Takbeer" did not contain any malicious material or false report, which was never contradicted by the respondent and further it has been categorically contended in the written statement that such article comprised of true facts and that it was not intended to malign thc% respondent or to cause any injury to the reputation of the respondent.
Out of the pleadings of the partie----- the learned trial Court framed the following issues:-- (1)Whether the suit is maintainable in view of Article 19 of the Constitution?
(2)Whether the plaintiff is entitled for the recovery of Rs. Five crores as damages?
(3)Relief.
3. On 13-12-1995 the petitioners filed an application under Order VII, Rule 10, C.P.C. On the ground that the suit before the Court at Quetta, for want of territorial jurisdiction is neither competent nor maintainable because the petitioners/defendants ordinarily reside at Karachi. This application was contested by the respondent by means of his rejoinder to the application filed in Court on 11-1.2- 1996. The learned Court after hearing the parties vide order, dated 5-5-1996 dismissed the application of the petitioners. The respondent on 18-12-1995 submitted the list of his witness, who in all examined seven witnesses besides his own statement recorded on 16-12-1996. It is pertinent to note that P.W.1 Fawad Hussain was examined by the respondent on 6-6-1996 and the attorney for the petitioners on 12-9-1996 moved an application before the trial Court praying that the defendants newly appointed counsel, be permitted to recross-examine P.W.1 because their previous counsel failed to effectively exercise such right and that the substantial points contained in the evidence of such witness are required to be clarified besides the clarification of certain points and ambiguities contained in the statement of P.W.1; such application was contested by the respondent by filing rejoinder to the application on 19-9-1996. It may be seen that the statement of the respondent/plaintiff was recorded on 16-12-1996 who could not be cross-examined because on such date the petitioner's counsel was not present and the learned trial Court reserved the right of cross-examination of the petitioners and finally such right was availed on behalf of the petitioners by their counsel on 11-3-1997, whereupon; the case was adjourned by the Court to 24-3-1997 for the petitioners'/defendants' evidence, on which date no evidence was produced by the petitioners and their counsel requested for an opportunity to be afforded for production of evidence. Request so made was allowed and the case accordingly was adjourned to 10-4-1997 for the evidence of the petitioners. On 10-4-1997 again the petitioners failed to produce any evidence and their counsel submitted list of ten witnesses, whereas; the respondents' counsel submitted an application under Order XVII, Rule 3, C.P.C. Notice whereof was given by the Court, to the other side and the case adjourned to 15-4-1997 for the defendants' evidence and for reply to the application. On the date fixed, the parties' counsel were present who were heard in respect of the application under Order XVII, Rule 3 and the case adjourned to 8-5-1997 for order on the application but the learned trial Court did not record any order with regard to the presence or otherwise of the defendants' witnesses.
The matter was taken up on 8-5-1997 and adjourned to 21-5-1997 for order on the application and on 21-5-1997, the application filed by the respondent was rejected, Mr. Farukh Malik, Advocate on this date appeared on behalf of the petitioners' counsel and the learned trial Court fixed the case for 5-6-1997 for the petitioners'/defendants' evidence. The parties' counsel were present on 5-6- 1997, on which date the Presiding Officer was on leave and the case was fixed for 14-6-1997 pursuant to the last order i.e. 21-5-1997. Again the Presiding Officer of the Court was on leave on 14- 6-1997 and the case adjourned to 21-6-1997 in terms of the previous order and the case was taken up by the Court on 21-6-1997, the counsel for the respondent was present, whereas; neither the petitioners nor their counsel was present and one of their witness namely Muhammad Kazim was present, who could not be examined on account of the absence of the petitioners and their counsel and it was observed by the Court in the order-sheet of even date that the petitioners have not so far deposited the diet money of the witnesses requested to be summoned by the Curt, accordingly direction was made that the defendants to appear in person before the Court and the case accordingly was. Fixed on 8-7-1997 for the defendants' evidence. The parties' counsel were present on 8-7-1997 when the case was taken up by the Court but no witness was produced by the petitioners, as such; subject to the payment of costs of Rs.1,000 the matter was adjourned to 26-6- 1997 for the petitioners' evidence on the request of the respondents' counsel; on which date even the petitioners failed to produce any evidence and the learned trial Court consequently, closed the evidence of the defendants and fixed the case for their statements on 2-8-1997. It may be noted that on the above mentioned date i.e. 26-7-1997 on behalf of the petitioners' application under Order XIV, Rule 5, C.P.C. Was submitted in the trial Court, notice whereof was given to the other side on the same date and the case was fixed on 2-8-1997 for the defendants' statements as well as for the reply of the application, on which date rejoinder to the application was filed by the respondent but arguments on such application could not be heard as none of the petitioners/defendants was present, therefore, they were proceeded ex parte and the case was fixed for ex parte order. Due to public holiday the case was taken up on the next day i.e. 16-8-1997 and adjourned to 20-8-1997 for order, on which date the petitioners filed application praying for setting aside of ex parte order, to which rejoinder was filed by the respondent on 26-8-1997 and finally on 22-10-1997 the learned trial Court allowed the application and recalled ex parte order against the costs of Rs.500 and fixed the application filed by the petitioners under Order XIV, Rule 5, C.P.C, for arguments. The learned trial Court vide order, dated 4-11-1997 allowed the application and framed the following additional issue on the ground that it would not cause any prejudice to the plaintiff:-- "Whether documents relied upon by the plaintiff are forged?" and; accordingly in the light of the abovementioned additional issue the plaintiff/respondent directed to file list of his witnesses and the case was fixed as such for the evidence of the plaintiff on 17-11-1997. The learned counsel for the plaintiff on the date so fixed in the matter, submitted before the learned trial Court that the respondent/plaintiff will not produce any evidence in view of the additional issue, and thus, the trial Court directed the petitioners to produce their evidence in respect of the additional issue vide order, dated 17-11-1997.
Both the abovementioned orders, dated 4-11-1997 and 17-11-1997 were challenged before this Court in Civil Revision No.319 of 1997. Vide judgment, dated 25-5-1998 the impugned orders were set aside and the matter remanded to the learned trial Court to decide afresh, the application of the defendants/petitioners filed under Order XIV, Rules 5, C.P.C. In accordance with law after hearing the parties.
4. The learned counsel for the petitioners, Mr. K.N. Kohli contended that the learned trial Court did not exercise the powers vesting in it according to law under Order XVII, Rule 3, C.P.C. In the given facts and circumstances of the case. According to the learned counsel on the previous date one of the petitioners' witnesses namely Muhammad Kazim was present who could not be examined due to the non-availability of the petitioners' counsel for which they cannot be held liable, inasmuch as; the impugned order is devoid of any justification and violative of the norms of justice depriving the petitioners of their right of defence. The learned counsel placed reliance on 1997 CLC 761 and 1985 SCMR 224.
According to Mr. Basharatullah the learned counsel for the respondent, the impugned order has been passed by the trial Court appropriately because repeatedly the petitioners failed to produce evidence who deliberately 'attempted at times to hinder further progress in the case, and; thus, the learned trial Court was constrained to close the evidence of the petitioners in the lawful exercise of its powers within the meaning of Order XVII, Rule 1, C.P.C. And in such view of the matter the revision is not competent. Reliance has been placed by the learned counsel on the reported judgments i.e. PLD 1989 Lah. 209, PLD 1994 Lah. 24 and 1994 CLC 348.
5. It may be seen that for the first time the suit was fixed on 24-3-1997 for the evidence of the petitioners after the plaintiffs' evidence, concluded, on which date no evidence was produced by the petitioners and on the request of the petitioners' counsel the case was adjourned to 10-4-1997 for the petitioners' evidence and on this date too, they failed 'to produce any evidence nor any reason was given for the failure of the petitioners to produce evidence, inasmuch as; on such date (when the case was fixed for the second time) for the evidence of the petitioners list of ten cited witnesses submitted in Court, out of which three witnesses namely (i) Naseerullah Khan Babar the then Interior Minister, Government of Pakistan, (ii) Sardar Yaqoob Khan Nasir, (Islamabad) and (i.e)
Rahman Malik the then Additional Director-General, F.I.A., Islamabad requested to be summoned by the Court but the petitioners did not deposit diet money of three witnesses. On the said date the respondent submitted application under Order XVII, Rule 3, C.P.C. Notice whereof was given to the petitioners' counsel and the suit adjourned to 15-4-1997 for the petitioners' evidence and for reply to the application. It appears from the diary sheet, dated 15-4-1997 that the petitioners did not produce any evidence on the said date even, and; thereafter the matter remained pending about the application filed under Order XVII, Rule 3, C.P.C. Which finally was rejected on 21-5-1997 by the trial Court and the case fixed for the evidence of the petitioners on 5-6-1997. On two subsequent dates the Presiding Officer of the Court was on leave and thus, the case fixed on 21-6-1997 by the reader; on which date neither the petitioners nor their counsel was present however, for such reason Muhammad Kazim their cited witness in attendance could not be examined by the Court, as such, the learned trial Court fixed the case for the evidence of the petitioners on 8-7-1997 directing the defendants to appear in person but this time too neither the defendants attended the Court nor produced any witness and; the learned Court against the costs of Rs.1,000 adjourned the case to 26-7-1997 for the defendants' evidence on the request of the respondents' counsel, and, that such order was passed by the Court in presence of the petitioners' counsel but the petitioners this time also, as in the past, did not produce any evidence nor explained any reason for their failure to produce evidence, consequently the learned trial Court passed the order impugned herein.
6. Diary sheet preceding to the last date of hearing fixed in the matter, in the abovementioned circumstances of the case would lay basis to see if the impugned order was passed by the Court within the purview of Order WIT, Rule 3, C.P.C. Or otherwise; which reveals that the hearing was not adjourned on the request of the petitioners or .Their counsel, rather the learned Court imposed costs against the petitioners on the request of the respondents' counsel and adjourned the case for evidence of the petitioners to 26-7-1997. In the instant matter the learned trial Court did not exercise the powers within the meaning of Order XVII, Rule 3, C.P.C. For closing the defendants' evidence most probably due to the reason that the essentials for such exercise were lacking; else the suit would have been decided by the Court on the basis of available material as per requirements of Rule 3 of Order XVII, C.P.C. It is pertinent to note that on the crucial date although none of the petitioners was present in Court but their counsel was in attendance therefore, for such reason as well the learned Court did not proceed under Rule 3 of Order XVII, C.P.C. 1997 CLC 761, 1992 CLC 1241, PLD 1982 Lah. 439, PLD 1991 SC 1109, PLD 1986 SC 129, 1983 SCMR 619 and 1985 SCMR 224 ref. The case-law cited by the petitioner's counsel are not of any assistance to the petitioners' case, because as abovenoted the impugned order was not passed by the Court in terms of Order XVII, Rule 3, C.P.C.
The case was adjourned to 24-3-1997, 10-4-1997 and 15-4-1997 for the evidence of the petitioners who failed to produce any witness on such dates and even list of witnesses submitted in Court on 10-4-1997 but the diet money of the witnesses sought to be summoned was not deposited and thereafter the suit was fixed for the evidence of the petitioners on 8-7-1997 and 26-7-1997 but they did not produce any evidence. Although one of the witness namely Muhammad Karim was present on 21-6-1997 in Court, who could not be examined on account of the petitioners' default and-that of their counsel. It may be noted that on 21-6-1997, was even not the date fixed by the Court for the evidence of the petitioners, rather on account of the Presiding Officer of the Court being on leave, the case was adjourned to 21-6-1997 by the reader, on which date the abovementioned witness of the petitioner attended the Court. The diary sheet dated 24-3-1997 indicate that on this date none of the witness of the petitioners was produced and even list of witnesses was not filed in Court and for the first time on the request of the petitioners' counsel case was adjourned to 10-4-1997 for the defendants' evidence but on account of default on the part of the defendants, the learned Court did not proceed under Order XVII, Rule 3, C.P:C. Rather adjourned the case as per routine for the evidence of the defendants and for reply to the application submitted by the respondent under Order XVII, Rule 3, C.P.C.
8. Rules 2 and 3 of Order. XVII, C.P.C. Are not in conflict with each other, rather these co-exist visulising different eventualities. The distinction is that Rule 2 would be attracted where the adjournment granted by the Court is general in nature and not for any special purpose; is not attracted until the party in default fails to appear at the hearing, whereas; Rule 3 applies where party in default is present and the time granted by the Court was at the instance of such party. The learned trial Court in the instant case also did not proceed under Rule 2 of Order XVII, C.P.C. As it did not follow any of the modes directed in that behalf by Order IX, C.P.C. Apparently for the reason that both the parties' counsel, were present on the said date before Court.
The words "or make such, other as it thinks fit" used in Rule 2 include an order under Order XVII, Rule 3, C.P.C. Or any other order as may admit in the circumstances of the case provided that the Court does not act under Order IX, C.P.C. As the condition precedent for the exercise of powers under Rule 2 was lacking hence the powers to "make such other order as it think fit" had no applicability in the instant matter.
10. It appears from the impugned order keeping in view the preceding diary sheets of the case that the learned trial Court proceeded against the petitioners by closing their side of the evidence and fixed the suit to another date for the statement of the defendants on account of their persistent failure to produce evidence. Striking of the defence as such would be perfectly justified. The discretion vesting in the Court to grant adjournment as per provisions of Order XVII, Rule 1 and proviso to Rule 2, C.P.C. Is not meant to be exercised very liberally, as the main object of such discretion is not to enable a party to improperly delay the proceedings rather the discretion is to be exercised on sound basis and for sufficient cause for which reasons are to be recorded by the Court.
It may be pointed out that the petitioners' counsel did not show any cause to the Court on 26-7- 1997 when the impugned order was passed about the failure on the part of the defendants to produce evidence, nor sought for any further adjournment to produce evidence by showing any reason. The petitioners were to produce evidence on 24-3-1997, 10-4-1997, 15-4-1997, 8-7-1997 and on 26-7-1997 to which dates the suit was adjourned from time to time but they failed to produce any evidence, resultantly the learned Court struck of their evidence and fixed the matter for their statements. It is pertinent to note that instead of producing evidence, an application under Order XIV, Rule 5, C.P.C. Was filed in Court on 26-7-1997. The diary sheets of the case referred to hereinfore in detail reflects upon the conduct of the petitioners that they, for no reason, protracted the conclusion of trial and the case, thus, was being adjourned from time to time for their evidence but they till 26-7-1997 failed to produce any evidence, as such; the Court was left with no option but to pass the impugned I order, within the purview of Order XVII, Rule 3, C.P.C. Which does not suffer from any legal error or jurisdictional defect. The discretion vesting in the Court has been appropriately exercised by the Court in accordance with law in view of the facts and circumstances of the case.
Thus, for the foregoing reasons the revision petition being meritless, is dismissed, with no order as to costs.