The brief facts in the instant civil revision are that the petitioner's evidence was closed under Order 17, Rule 3 CPC by the learned trial Court d the suit filed by the Petitioner was dismissed. On appeal the finding of learned trial Court was confirmed.
2. The arguments advanced by the learned counsel for the petitioner that the judgment and decree of both the learned Courts below are based on erroneous assumption of facts and law and against the well settled provision of the Civil Procedure Code as the petitioner was not afforded sufficient time to produce his evidence by the learned trial Court. The bare reading of the record shows that only three dates were given to the petitioner for producing his evidence and it was technically decided. As the petitioner was not guilty of contumacy and obduracy, therefore, the provisions of Order, 17, Rule 3 CPC were not attracted to the petitioner's case. Reliance is placed on Syed Arshad Naeem and 5 others vs. Atta Rabbani and 2 others (1999 MLD 2267).
3. The learned counsel for the respondent argued that he filed an application under Order 7, Rule 11 CPC for rejection of the plaint but the leaned trial Court did not decide the application rather formulated the issues and fixed the case for evidence and on three occasions the petitioner had failed to produce his evidence, therefore, his right of evidence was rightly closed. Reliance is placed on Mian Gul Shahzad Aman Room vs. Kameen Mian and others (PLD 2003 Peshawar 60).
4. I have heard the learned counsel for the parties and have perused the record.
5. On 27.11.2002 the learned trial Court observed that the defendant's right of filing the written statement was struck off. A Misc. Application was filed under Order 7, Rule 11 CPC by. the defendant alleging that the plaintiff's suit is barred by limitation. In the light of the plaint and this application filed under Order 7, Rule 11 CPC the learned trial Court framed the issues and put up the case on 24.2.2003 for recording the evidence of the plaintiff. On that day the evidence of the plaintiff was not available. It was adjourned to 22.4.2003. On 22.4.2003 again adjourned to 18.6.2003 and on that day the learned trial Court closed the evidence of the plaintiff and vide judgment and decree dated 18.6.2003 dismissed the suit. The provisions of Order 17, Rule 3 CPC no doubt are punitive in nature but ' it does not mean that the Court can use this punitive action without even giving a final opportunity of evidence to the parties. The provisions of this rule are permissive and discretionary and also not mandatory in nature. The Court can only close the evidence if the parties' conduct is contumacious and fails to produce the witnesses. Where a party has failed to produce evidence the Court may close its evidence and proceed to record the evidence of the other party and when evidence of the other party is recorded the other side must be given a reasonable opportunity to impeach the testimony of the witnesses. Reliance is placed on Muhammad Akhlas us. Syed Mehdi Raza (1988 MLD 1545). Moreover both the orders dated 24.2.2003 and 22.4.2003 do not disclose that on whose instance the case was adjourned for evidence.
6. The other material fact is that when an application is given under Order 7, Rule 11 CPC and the reply has been filed the Court is bound to decide the same firstly and then proceed on with the case or to frame issues and treat the issues of the suit being incompetent as preliminary issues and record the evidence and then to decide the same. In the present case the issues were framed and from the perusal of the record it shows that the right of filing the written statement is also struck off by the learned trial Court. While administering the justice within the all four corners of law the Court should not be harsh to the parties to the suit to punish them where and whenever an dccasion arises rather it should sit with an open and judicial mind and act in all fairness with the norms of justice. Therefore, a material irregularity and illegality exists in attracting the provisions of Order 17, Rule 3 CPC in the present case where the Court has rushed to a punitive action rather giving sufficient time to the parties to produce their evidence. The facts and circumstances of this case does not apply to the facts given in Mian Gul Shehzad Aman Room vs. Kameen Mian and others (PLD 2003 Peshawar 60). In that case 17 adjournments were given for production of the evidence. Here only three opportunities were given within the time of formulation of issues and at no stage the plaintiff was put to guard to produce the evidence. Secondly reliance is placed on Mst.
Arifa Amjad and 2 others vs. Abbas Tayyab Dar and another [(1990 CLC 1743) (Lahore)] where the guidelines have been settled for the trial Court to observe before attracting the provisions of Order 17, Rule 3 CPC that (i) the time must be granted to the parties on at their instance, (ii) time must have been granted to the party to do one or other of the three things mentioned in the rule to produce evidence or to cause attendance of witnesses or to preform any other act necessary for the progress of the suit, (iii) default must have been committed by the party in doing the act for which the time and adjournment had been granted to it, and (iv) the Court must decide the suit forthwith which means a decision within a reasonable time under the circumstances.
7. In view of what has been stated above, the civil revision is C accepted and the judgment and decree dated 18.06.2003 is hereby set aside.