2016 C L C 1490
2016 C L C 1490
[Gilgit-Baltistan Chief Court]
Before Sahib Khan, C.J. and Yar Muhammad, J
TANZEEM CORPORATION GUPIS/YASIN through Representative and another----Appellants
Versus
MOMIN SHAH----Respondent
CFA No.51 of 2014, decided on 18th April, 2016.
(a) Civil Procedure Code (V of 1908)---
----O. XVII, R. 3, O. IX, R. 8 & O. VII, R. 2---Money suit---Closure of evidence---Words "proceed to decide forthwith" occurring in O.XVII, R.3, C.P.C.---Scope---Trial Court had failed to afford fair opportunities to the plaintiffs to produce evidence---Only two chances had been given to the plaintiffs to produce evidence---Trial Court instead of making recourse to O.XVII, R.3, C.P.C. should have adjourned the case imposing cost on the plaintiffs---Trial Court was supposed to pass a speaking and well-reasoned order---Material brought on record by the parties should be given due consideration before closing evidence---Trial Court did not go through the pleadings of the parties---Plaintiff who was present before the court should have been asked to come in the witness box to record his own statement and thereafter case should have been adjourned for defendant's evidence or for hearing argument and then judgment given on each issue---Order XVII, R.3, C.P.C. did not at all provide that in case evidence was not produced on the fixed date the suit would be decided against the defaulting party by way of penalty---Trial Court had dismissed the suit without touching merits of the same---Trial Court had acted under the procedure provided in O.XVII, R.3, C.P.C. but suit had been dismissed adopting the procedure provided in O.IX, R.8, C.P.C---Words "proceed to decide forthwith" in O.XVII, R.3, C.P.C. did not mean to decide the suit forthwith or "dismiss the suit forthwith"---Impugned judgment was not only illegal but was without lawful authority which was set aside---Case was remanded to the Trial Court for decision on merits after recording evidence of both the parties---Appeal was allowed in circumstances.
(b) Civil Procedure Code (V of 1908)---
----O. XVII, R. 3---`Forthwith'---Meaning.
(c) Administration of justice---
----Delay in justice denial of justice.
Rehmat Karim for Appellants.
Islam-ud-Din for Respondent.
Date of hearing: 18th April, 2016.
JUDGMENT
YAR MUHAMMAD, J.--- Through this Civil First Appeal the appellants/Plaintiffs have targeted the order dated 29-04-2014 passed in Civil Suit No. 73/2007 by Civil Judge 1st Class Gupies whereby the learned Judge has dismissed the Suit of the appellants while proceeding them under rule 3 of Order XVII, C.P.C.
2. Concisely the facts leading to this appeal as emanating from the plaint are that on 21-09-2007 the appellants/plaintiffs filed the Suit against the respondent for recovery of suit amount Rs.429393/-. According to the contents of the plaint the defendant/respondent was appointed as salesman/sales-manager in the Tanzeem Corporation at Yasin Branch. During his service period the respondent/defendant collected many eatables from main branch of the Corporation situate at Gupis for Yasin branch for sale and the sale-proceed whereof was calculated came to Suit amount. In the meantime, the defendant quit the service but did not pay the Suit amount despite demands of the plaintiffs and these demands ultimately culminated with the existence of a "written bond" between the parties vide which the respondent/ defendant confessed about the Suit amount was payable to the plaintiff/corporation by him. It has alleged that despite of the above assurance, the defendant/respondent did not pay the amount and lastly denied the claim of the plaintiffs that pushed the parties into the instant litigation.
3. The Suit no doubt has been contested by the defendant/ respondent through filing written statement wherein besides may other legal objections he raised the objection about non-maintainability of the Suit due to lack of jurisdiction by the Civil Court on the ground that the Tanzeem Corporation is registered under Co-Operative Society Act which law while barring jurisdiction of the Civil Court provides some other forum for redressal of such issues. Anyhow, this point was settled deciding in the negative through an order by the learned trial Court against which no appeal/revision was filed.
4. On 12-04-2011 the learned trial Court formulated issues arising out from the divergent pleadings of the parties and fixed the case next on 18-04-2011 for filing list of witnesses and thereafter the case was adjourned to 16-6-2011 for plaintiff's evidence. From 16-6-2011 to 10-11-2012 the case by some or other way has been fixed for the plaintiff's evidence and during this period the plaintiff on my occasions had produced his witnesses but due to some or other reason rather in many times at the request of the defendants' Counsel the case was adjourned without recording the statements of the PWs. It may also be worth mention that during the above period some miscellaneous application filed by the defendant have also been disposed of as such the period consumed from 16-06-2011 to 10-11-2012 could not be said was spent awaiting for plaintiff's evidence.
5. On 05-12-2013 when the case was fixed for the plaintiff's evidence, the PWs, did not produce therefore, the case was adjourned to 14-12-2013 for same purpose. On this date the plaintiff succeeded in the production of all PWs but due to absence of the defendant's Counsel the witnesses could not be examined and again the case was deferred to 15-3-2014. On this date the plaintiff again produced all PWs but they again not examined due to insufficiency of Court time because of the learned trial Judge as shown was engaged in other Judicial matters resultantly, the case was adjourned to 05-4-2014. On this date the plaintiff did not produce the witnesses hence, the learned trial Court although adjourned the case to 29-4-2014 but with notice to plaintiff under rule-3 of Order XVII, C.P.C. On the adjourned date the plaintiffs again failed in the production of the PWs resultantly, the learned trial Court dismissed the Suit under rule-3 of Order XVII, C.P.C., hence the instant appeal.
6. M/s Rehamt Karim and Mir Nawaz Khan Advocates the learned Counsel for the appellants/plaintiffs argued that only two opportunities have been afforded to the plaintiffs for the production of their evidence and without affording reasonable time the learned trial Court has recoursed to the provisions of rule-3 of Order XVII, C.P.C. and summarily dismissed the suit for non-production of the PWs. They next argued that while passing the impugned order the learned trial Judge failed to appreciate the object and mandate of rule-3 of Order XVII, C.P.C. resulting in the mis-carriage of Justice. He further submitted that while passing the impugned order the learned trial Court was legally bound to go through the pleadings of the parties and the documents specially appended with the plaint to check their evidentiary value and then have to assess if these documents are required to be rebutted by the defendant providing him a fair chance for that purpose so as to avail the true object of rule-3 of Order XVII, C.P.C. and for that purpose the case was to adjourn.
7. Mr. Islamuddin Advocate the learned Counsel for the respondent/defendant while controverting the contentions raised by the learned Counsel for the appellant has submitted that since the appellants/plaintiffs had failed to produce evidence despite providing many opportunities and the intention behind this conduct right from the framing of issue was to delay the proceeding with lame excuses and accordingly on the date when the impugned order was passed, again the plaintiff did not produce evidence despite notice under rule-3 of Order XVII, C.P.C. as such the plaintiffs/appellants are not entitled for any leniency .
8. We have minutely gone through the record of the case and have given our thoughtful consideration to the record and the contentions of the learned Counsel for the parties. A perusal of the record would reveal that on 18-04-2011 when the case was fixed for filing the list of witnesses both the parties did not file the same meaning thereby that they undertook to produce their respective evidence on their own accord and 16-06-2011 was the first date on which the case was fixed for PWs. We have observed above that from the above date to 10-11-2012 the case was not purely fixed for the plaintiff's evidence rather during the period some miscellaneous application had also pressed into service by the defendant/respondent but even that on many dates the plaintiff/ respondent had produced PWs but they could not be examined due to absence of the defendant's Counsel or availing leave by the learned Presiding Officer. The actual time consumed for plaintiff's evidence is encircling from 05-12-2013 to 29-04-2014 when the impugned order was passed and during this period total five dates have undertaken in the case for the PWs and out of these dates, in two occasions, the plaintiffs had produced the PWs. On 15-03-2014 the plaintiffs had produced the PWs but due to engagement of the Presiding Officer in other judicial matters the PWs were not examined resultantly, the case was adjourned to 05-04-2014 for same purpose. On this date PWs were not produced thus, the case was adjourned to 29-04-2014 for PWs with notice as provided under rule-3 of Order XVII, C.P.C. On 29-04-2014 the PWs again not produced resultantly the suit was dismissed under rule-3 of Order XVII, C.P.C.
9. The above facts show that the learned trial Court has failed in affording fair opportunities to the plaintiffs for production of the PWs. The learned trial Court also failed to acknowledge the fact that previously the plaintiffs in many occasions had produced PWs but due to request for adjournment by the defendant's Counsel or other reason the PWs could not be examined and dismissed the Suit proceeding the plaintiffs under penalizing provisions of rule-3 of Order XVII, C.P.C., was not justified. We have noticed that only two chances have been afforded for the production of PWs as such the learned trial Judge instead of recoursing to rule-3 of Order XVII, C.P.C., had to adjourn the case even imposing cost on the plaintiff so as to avoid miscarriage of Justice. Delay in Justice no doubt is the denial of the justice but we are of the considered view that delay despite being painful is tolerable to that of the injustice, that also on technical basis.
10. The learned trial Court no doubt is competent to foreclose right of the plaintiff or defendant to lead evidence but the Court is supposed to pass a speaking, well reasoned order and in conformity with the provision of law. Before closing evidence under rule-3 of Order XVII, C.P.C. like in hand the Courts should be vigilant that the materials brought on file by the parties be given due consideration so that precautionary measures may be adopted before entering into situation compelling to pass an order which later on may be proved was contradictory to the material on file. In the case before us the learned trial Court did not bother even to go through the pleadings of the parties so as to see if any claim or part of the claim of the plaintiffs directly or impliedly has been accepted by the defendant. Para No. 4 of the plaint has met by the defendant saying that he has paid the price of all eatables taken by him from main store and the amount has been deposited in the account of the plaintiff about which he had the receipts and subsequently he produced the receipts. Plaintiff had also filed a "written bond" which was also not brought under discussion while passing the impugned order. The learned Court was required to go through the plaint, the written statement and the documents produced by the parties before the impugned order was passed. He was further required to have asked the plaintiff who was present in the Court to come in the witness box to record his own statement and thereafter, the trial Court ought to adjourn the case for defendant's evidence or for hearing arguments of the parties and then gives a judgment on each issue in the light of evidence available on the record.
11. Through the impugned order the learned trial Court simply has dismissed the suit taking support from rule-3 of Order XVII, C.P.C., has departed from the actual object of the said rule. What does the rule-3 say same is reproduced as under:-
Rule-3 Court my proceed not withstanding either party fails to produce evidence etc.- Where any party to a suit to whom time has been granted fails to produce evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit or for which time has been allowed, the Court may, not withstanding such default proceed to decide the Suit forthwith.
12. From the above, we draw inference that rule-3 of Order XVII, C.P.C. does not at all provide that in case the evidence is not produced on the fixed date the suit would be decided against the defaulting party by way of penalty rather when in compliance of the said provision of law the evidence is not produced the Court is to proceed with the suit but in such circumstances passing an order dismissing the suit would be without lawful authority specially when the order does not spell out any fault on the part of the plaintiff. A perusal of order sheets would make it abundantly clear that on two consecutive adjournments the plaintiff had failed in producing evidence despite notice of rule-3 of Order XVII, C.P.C., dismissed the suit without touching plaintiff. A perusal of order sheets would make it abundantly clear that on two consecutive adjournments the plaintiff had failed in producing evidence despite notice of rule-3 of Order XVII, C.P.C., dismissed the suit without touching the merits of the case as available on the record which might comprise of any evidence on file or documents placed on record and also pleadings of the parties and in that process Court was to hear arguments of the parties and to give judgment on each issue in the light of evidence on record, rather dismissed the Suit was not only illegal but was without lawful authority.
13. The learned trial Court although has acted under rule-3 of Order XVII, C.P.C. while passing the impugned order but practically he has adopted the procedure as provided under rule-8 of Order IX, C.P.C. The provisions of rule-8 of Order IX, C.P.C. are attracted when the plaintiff remains absent when the suit was called for hearing, the Court may make an order that the suit be dismissed. In the present matter the learned trial Court has acted under the procedure provided in rule-3 of Order XVII, C.P.C. but through the impugned order has dismissed the suit practically adopting the procedure provided under rule-8 Order IX, C.P.C. whereas the provision of rule-3 of Order XVII, C.P.C. being permissive and discretionary in nature is very much different from the provisions of rule-8 of Order IX, C.P.C. In rule-3 of Order XVII, C.P.C. the words "proceed to decide forthwith" do not mean to decide the Suit forthwith or "dismiss the suit forthwith". Court may proceed with the Suit not withstanding either party failed to produce evidence, meaning thereby that in case of default to do a specific act by any party to the suit, next step required to be taken in the suit should be taken. The word "forthwith" means without any further adjournment yet it cannot be equated with the words "at once" pronounce a judgment forthwith. The next object of the provision of rule-3 is that after striking off the defence would not vest the Court with an authority to grant decree ignoring the material on file which means that when the Court suggests that penalizing provisions became mandatory to be applied it should at least record the statement of the party concern and then adjourn the case for evidence of the opposite party or at least adjourn the case for hearing arguments of the parties enabling itself to deliver a full judgment returning finding on each issue so as to fulfill the actual object and mandate of rule-3 of Order XVII, C.P.C.
Consequently, the appeal is accepted, set aside the impugned order dated 29-04-2014 passed by learned Civil Judge 1st Class, Gupies in Civil Suit No.73/2007. Resultantly, the case is remanded back to the learned trial Court for decision on merit after recording evidence of both the parties. However, the learned trial Court should afford only two opportunities to the plaintiff for production of their complete evidence.
Copy of this order be circulated among the all judges of District Judiciary in Gilgit-Baltistan.
ZC/35/GB Case remanded.
[Gilgit-Baltistan Chief Court]
Before Sahib Khan, C.J. and Yar Muhammad, J
TANZEEM CORPORATION GUPIS/YASIN through Representative and another----Appellants
Versus
MOMIN SHAH----Respondent
CFA No.51 of 2014, decided on 18th April, 2016.
(a) Civil Procedure Code (V of 1908)---
----O. XVII, R. 3, O. IX, R. 8 & O. VII, R. 2---Money suit---Closure of evidence---Words "proceed to decide forthwith" occurring in O.XVII, R.3, C.P.C.---Scope---Trial Court had failed to afford fair opportunities to the plaintiffs to produce evidence---Only two chances had been given to the plaintiffs to produce evidence---Trial Court instead of making recourse to O.XVII, R.3, C.P.C. should have adjourned the case imposing cost on the plaintiffs---Trial Court was supposed to pass a speaking and well-reasoned order---Material brought on record by the parties should be given due consideration before closing evidence---Trial Court did not go through the pleadings of the parties---Plaintiff who was present before the court should have been asked to come in the witness box to record his own statement and thereafter case should have been adjourned for defendant's evidence or for hearing argument and then judgment given on each issue---Order XVII, R.3, C.P.C. did not at all provide that in case evidence was not produced on the fixed date the suit would be decided against the defaulting party by way of penalty---Trial Court had dismissed the suit without touching merits of the same---Trial Court had acted under the procedure provided in O.XVII, R.3, C.P.C. but suit had been dismissed adopting the procedure provided in O.IX, R.8, C.P.C---Words "proceed to decide forthwith" in O.XVII, R.3, C.P.C. did not mean to decide the suit forthwith or "dismiss the suit forthwith"---Impugned judgment was not only illegal but was without lawful authority which was set aside---Case was remanded to the Trial Court for decision on merits after recording evidence of both the parties---Appeal was allowed in circumstances.
(b) Civil Procedure Code (V of 1908)---
----O. XVII, R. 3---`Forthwith'---Meaning.
(c) Administration of justice---
----Delay in justice denial of justice.
Rehmat Karim for Appellants.
Islam-ud-Din for Respondent.
Date of hearing: 18th April, 2016.
JUDGMENT
YAR MUHAMMAD, J.--- Through this Civil First Appeal the appellants/Plaintiffs have targeted the order dated 29-04-2014 passed in Civil Suit No. 73/2007 by Civil Judge 1st Class Gupies whereby the learned Judge has dismissed the Suit of the appellants while proceeding them under rule 3 of Order XVII, C.P.C.
2. Concisely the facts leading to this appeal as emanating from the plaint are that on 21-09-2007 the appellants/plaintiffs filed the Suit against the respondent for recovery of suit amount Rs.429393/-. According to the contents of the plaint the defendant/respondent was appointed as salesman/sales-manager in the Tanzeem Corporation at Yasin Branch. During his service period the respondent/defendant collected many eatables from main branch of the Corporation situate at Gupis for Yasin branch for sale and the sale-proceed whereof was calculated came to Suit amount. In the meantime, the defendant quit the service but did not pay the Suit amount despite demands of the plaintiffs and these demands ultimately culminated with the existence of a "written bond" between the parties vide which the respondent/ defendant confessed about the Suit amount was payable to the plaintiff/corporation by him. It has alleged that despite of the above assurance, the defendant/respondent did not pay the amount and lastly denied the claim of the plaintiffs that pushed the parties into the instant litigation.
3. The Suit no doubt has been contested by the defendant/ respondent through filing written statement wherein besides may other legal objections he raised the objection about non-maintainability of the Suit due to lack of jurisdiction by the Civil Court on the ground that the Tanzeem Corporation is registered under Co-Operative Society Act which law while barring jurisdiction of the Civil Court provides some other forum for redressal of such issues. Anyhow, this point was settled deciding in the negative through an order by the learned trial Court against which no appeal/revision was filed.
4. On 12-04-2011 the learned trial Court formulated issues arising out from the divergent pleadings of the parties and fixed the case next on 18-04-2011 for filing list of witnesses and thereafter the case was adjourned to 16-6-2011 for plaintiff's evidence. From 16-6-2011 to 10-11-2012 the case by some or other way has been fixed for the plaintiff's evidence and during this period the plaintiff on my occasions had produced his witnesses but due to some or other reason rather in many times at the request of the defendants' Counsel the case was adjourned without recording the statements of the PWs. It may also be worth mention that during the above period some miscellaneous application filed by the defendant have also been disposed of as such the period consumed from 16-06-2011 to 10-11-2012 could not be said was spent awaiting for plaintiff's evidence.
5. On 05-12-2013 when the case was fixed for the plaintiff's evidence, the PWs, did not produce therefore, the case was adjourned to 14-12-2013 for same purpose. On this date the plaintiff succeeded in the production of all PWs but due to absence of the defendant's Counsel the witnesses could not be examined and again the case was deferred to 15-3-2014. On this date the plaintiff again produced all PWs but they again not examined due to insufficiency of Court time because of the learned trial Judge as shown was engaged in other Judicial matters resultantly, the case was adjourned to 05-4-2014. On this date the plaintiff did not produce the witnesses hence, the learned trial Court although adjourned the case to 29-4-2014 but with notice to plaintiff under rule-3 of Order XVII, C.P.C. On the adjourned date the plaintiffs again failed in the production of the PWs resultantly, the learned trial Court dismissed the Suit under rule-3 of Order XVII, C.P.C., hence the instant appeal.
6. M/s Rehamt Karim and Mir Nawaz Khan Advocates the learned Counsel for the appellants/plaintiffs argued that only two opportunities have been afforded to the plaintiffs for the production of their evidence and without affording reasonable time the learned trial Court has recoursed to the provisions of rule-3 of Order XVII, C.P.C. and summarily dismissed the suit for non-production of the PWs. They next argued that while passing the impugned order the learned trial Judge failed to appreciate the object and mandate of rule-3 of Order XVII, C.P.C. resulting in the mis-carriage of Justice. He further submitted that while passing the impugned order the learned trial Court was legally bound to go through the pleadings of the parties and the documents specially appended with the plaint to check their evidentiary value and then have to assess if these documents are required to be rebutted by the defendant providing him a fair chance for that purpose so as to avail the true object of rule-3 of Order XVII, C.P.C. and for that purpose the case was to adjourn.
7. Mr. Islamuddin Advocate the learned Counsel for the respondent/defendant while controverting the contentions raised by the learned Counsel for the appellant has submitted that since the appellants/plaintiffs had failed to produce evidence despite providing many opportunities and the intention behind this conduct right from the framing of issue was to delay the proceeding with lame excuses and accordingly on the date when the impugned order was passed, again the plaintiff did not produce evidence despite notice under rule-3 of Order XVII, C.P.C. as such the plaintiffs/appellants are not entitled for any leniency .
8. We have minutely gone through the record of the case and have given our thoughtful consideration to the record and the contentions of the learned Counsel for the parties. A perusal of the record would reveal that on 18-04-2011 when the case was fixed for filing the list of witnesses both the parties did not file the same meaning thereby that they undertook to produce their respective evidence on their own accord and 16-06-2011 was the first date on which the case was fixed for PWs. We have observed above that from the above date to 10-11-2012 the case was not purely fixed for the plaintiff's evidence rather during the period some miscellaneous application had also pressed into service by the defendant/respondent but even that on many dates the plaintiff/ respondent had produced PWs but they could not be examined due to absence of the defendant's Counsel or availing leave by the learned Presiding Officer. The actual time consumed for plaintiff's evidence is encircling from 05-12-2013 to 29-04-2014 when the impugned order was passed and during this period total five dates have undertaken in the case for the PWs and out of these dates, in two occasions, the plaintiffs had produced the PWs. On 15-03-2014 the plaintiffs had produced the PWs but due to engagement of the Presiding Officer in other judicial matters the PWs were not examined resultantly, the case was adjourned to 05-04-2014 for same purpose. On this date PWs were not produced thus, the case was adjourned to 29-04-2014 for PWs with notice as provided under rule-3 of Order XVII, C.P.C. On 29-04-2014 the PWs again not produced resultantly the suit was dismissed under rule-3 of Order XVII, C.P.C.
9. The above facts show that the learned trial Court has failed in affording fair opportunities to the plaintiffs for production of the PWs. The learned trial Court also failed to acknowledge the fact that previously the plaintiffs in many occasions had produced PWs but due to request for adjournment by the defendant's Counsel or other reason the PWs could not be examined and dismissed the Suit proceeding the plaintiffs under penalizing provisions of rule-3 of Order XVII, C.P.C., was not justified. We have noticed that only two chances have been afforded for the production of PWs as such the learned trial Judge instead of recoursing to rule-3 of Order XVII, C.P.C., had to adjourn the case even imposing cost on the plaintiff so as to avoid miscarriage of Justice. Delay in Justice no doubt is the denial of the justice but we are of the considered view that delay despite being painful is tolerable to that of the injustice, that also on technical basis.
10. The learned trial Court no doubt is competent to foreclose right of the plaintiff or defendant to lead evidence but the Court is supposed to pass a speaking, well reasoned order and in conformity with the provision of law. Before closing evidence under rule-3 of Order XVII, C.P.C. like in hand the Courts should be vigilant that the materials brought on file by the parties be given due consideration so that precautionary measures may be adopted before entering into situation compelling to pass an order which later on may be proved was contradictory to the material on file. In the case before us the learned trial Court did not bother even to go through the pleadings of the parties so as to see if any claim or part of the claim of the plaintiffs directly or impliedly has been accepted by the defendant. Para No. 4 of the plaint has met by the defendant saying that he has paid the price of all eatables taken by him from main store and the amount has been deposited in the account of the plaintiff about which he had the receipts and subsequently he produced the receipts. Plaintiff had also filed a "written bond" which was also not brought under discussion while passing the impugned order. The learned Court was required to go through the plaint, the written statement and the documents produced by the parties before the impugned order was passed. He was further required to have asked the plaintiff who was present in the Court to come in the witness box to record his own statement and thereafter, the trial Court ought to adjourn the case for defendant's evidence or for hearing arguments of the parties and then gives a judgment on each issue in the light of evidence available on the record.
11. Through the impugned order the learned trial Court simply has dismissed the suit taking support from rule-3 of Order XVII, C.P.C., has departed from the actual object of the said rule. What does the rule-3 say same is reproduced as under:-
Rule-3 Court my proceed not withstanding either party fails to produce evidence etc.- Where any party to a suit to whom time has been granted fails to produce evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit or for which time has been allowed, the Court may, not withstanding such default proceed to decide the Suit forthwith.
12. From the above, we draw inference that rule-3 of Order XVII, C.P.C. does not at all provide that in case the evidence is not produced on the fixed date the suit would be decided against the defaulting party by way of penalty rather when in compliance of the said provision of law the evidence is not produced the Court is to proceed with the suit but in such circumstances passing an order dismissing the suit would be without lawful authority specially when the order does not spell out any fault on the part of the plaintiff. A perusal of order sheets would make it abundantly clear that on two consecutive adjournments the plaintiff had failed in producing evidence despite notice of rule-3 of Order XVII, C.P.C., dismissed the suit without touching plaintiff. A perusal of order sheets would make it abundantly clear that on two consecutive adjournments the plaintiff had failed in producing evidence despite notice of rule-3 of Order XVII, C.P.C., dismissed the suit without touching the merits of the case as available on the record which might comprise of any evidence on file or documents placed on record and also pleadings of the parties and in that process Court was to hear arguments of the parties and to give judgment on each issue in the light of evidence on record, rather dismissed the Suit was not only illegal but was without lawful authority.
13. The learned trial Court although has acted under rule-3 of Order XVII, C.P.C. while passing the impugned order but practically he has adopted the procedure as provided under rule-8 of Order IX, C.P.C. The provisions of rule-8 of Order IX, C.P.C. are attracted when the plaintiff remains absent when the suit was called for hearing, the Court may make an order that the suit be dismissed. In the present matter the learned trial Court has acted under the procedure provided in rule-3 of Order XVII, C.P.C. but through the impugned order has dismissed the suit practically adopting the procedure provided under rule-8 Order IX, C.P.C. whereas the provision of rule-3 of Order XVII, C.P.C. being permissive and discretionary in nature is very much different from the provisions of rule-8 of Order IX, C.P.C. In rule-3 of Order XVII, C.P.C. the words "proceed to decide forthwith" do not mean to decide the Suit forthwith or "dismiss the suit forthwith". Court may proceed with the Suit not withstanding either party failed to produce evidence, meaning thereby that in case of default to do a specific act by any party to the suit, next step required to be taken in the suit should be taken. The word "forthwith" means without any further adjournment yet it cannot be equated with the words "at once" pronounce a judgment forthwith. The next object of the provision of rule-3 is that after striking off the defence would not vest the Court with an authority to grant decree ignoring the material on file which means that when the Court suggests that penalizing provisions became mandatory to be applied it should at least record the statement of the party concern and then adjourn the case for evidence of the opposite party or at least adjourn the case for hearing arguments of the parties enabling itself to deliver a full judgment returning finding on each issue so as to fulfill the actual object and mandate of rule-3 of Order XVII, C.P.C.
Consequently, the appeal is accepted, set aside the impugned order dated 29-04-2014 passed by learned Civil Judge 1st Class, Gupies in Civil Suit No.73/2007. Resultantly, the case is remanded back to the learned trial Court for decision on merit after recording evidence of both the parties. However, the learned trial Court should afford only two opportunities to the plaintiff for production of their complete evidence.
Copy of this order be circulated among the all judges of District Judiciary in Gilgit-Baltistan.
ZC/35/GB Case remanded.
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