2016 C L C Note 65
2016 C L C Note 65
[Lahore]
Before Amin-ud-Din Khan and Abid Aziz Sheikh, JJ
MUHAMMAD ASLAM BUTT----Appellant
Versus
Mst. KHALIDA PARVEEN and 3 others----Respondents
Regular First Appeal No.229 of 2009, heard on 11th October, 2013.
Civil Procedure Code (V of 1908)---
----O. XVII, Rr. 1 & 3---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Proceeding with the suit forthwith---Closure of evidence---Scope---Provision of O.XVII, R.3, C.P.C. was not the only provision for proceeding with the suit forthwith but sub-rule (3) of R.1 of O.XVII, C.P.C. was also available for the Trial Court to proceed with the suit forthwith---Many opportunities were given to the plaintiff on his request for production of evidence but he failed to produce the same---Court had powers to proceed with the suit forthwith when same was fixed for specific proceedings and party to the suit had neglected or intentionally disobeyed its order---Trial Court had power to proceed forthwith with the suit when plaintiff after exhausting sufficient opportunities failed to produce evidence---Plaintiff was bound to offer sufficient reason for non-production of evidence for each and every date of hearing he sought adjournment---Trial Court was justified in invoking the penal provisions which were available with it under O.XVII, R.3, C.P.C. as well as O.XVII, R.1, Sub-rule (3), C.P.C. when no justification was offered by the plaintiff for non-production of evidence---Appeal was dismissed with costs throughout. [paras. 5 of the judgment]
Pirzada Amir Hussain and others v. Mrs. Shamim Shah Nawaz and others 1987 SCMR 249 and Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and others 2002 CLC 1111 rel.
Muhammad Aslam v. Nazir Ahmed 2008 SCMR 948 distinguished.
Ch. Muhammad Imtiaz Bajwa for Appellant.
Nemo for Respondents.
Date of hearing: 11th October, 2013.
JUDGMENT
AMIN-UD-DIN KHAN, J.---Through this appeal the appellant has challenged the judgment and decree dated 6.4.2009, passed by the learned Civil Judge Ist Class, Sargodha, whereby suit for specific performance filed by the plaintiff/appellant after closing his right to produce evidence was dismissed.
2. Brief facts of the case are that the plaintiff/appellant on 26.2.2007, filed a suit for specific performance of contract dated 13.10.2005. Written statement was filed and the agreement was denied. The learned trial Court on 14.2.2008, framed the issues, parties were directed to submit list of witnesses, documents and certificate of readiness to produce evidence within seven days and the case was adjourned for evidence of the plaintiff for 19.4.2008. According to record, the Presiding Officer was on tour on the aforesaid date, therefore, Reader of the Court noted the presence of the learned counsel for the parties and adjourned the case for 26.6.2008 in accordance with the previous proceedings. On 26.6.2008, evidence of the plaintiff was not available and the case was adjourned to 18.9.2008. On 18.9.2008, same was the position and the case was adjourned to 25.11.2008. On 25.11.2008, the case was transferred to the other Court, even on the said date evidence of the plaintiff was not available and the case was adjourned for 16.1.2009. On 16.1.2009, evidence of the plaintiff was not available and the case was adjourned to 6.4.2009. Even on 6.4.2009, evidence of the plaintiff was not available, only learned counsel for the parties appeared before the learned trial Court and further request for adjournment was made for production of evidence, which was not acceded to by the learned trial Court and after closing the right of evidence under Order XVII, Rule 3 of the C.P.C. vide judgment and decree of the same date the suit was dismissed.
3. No one appeared on behalf of the respondents, therefore, we have heard the learned counsel for the appellant only and perused the record.
4. Learned counsel for the appellant argues that for invoking penal provisions of Order XVII, Rule 3 of the C.P.C. the Court was bound to issue warning with regard to the closure of evidence on the date prior to the passing of the impugned judgment and decree and further the Court was competent to impose fine for non-production of evidence on the said date. Learned counsel has relied upon Muhammad Aslam v. Nazir Ahmed (2008 SCMR 948). We have noted that on the fateful date it is not on record that the plaintiff appeared before the Court or was available. The case law relied upon by the learned counsel for the appellant is not applicable to the facts of this case. Even the plaintiff/appellant has not claimed his presence before the trial Court on the fateful date, therefore, plaintiff/appellant cannot take benefit of the case law referred to by the learned counsel.
5. So far as issuance of warning as well as imposing Fine before pressing into service penal clause of Order XVII, Rule 3 of the C.P.C. is concerned, in our view the provisions of Order XVII, Rule 3 of the C.P.C. are not the only provisions for proceeding with the suit forthwith. The provision of Order XVII, Rule 1 of the C.P.C., High Court Amendment Lahore, which is available as Sub-Rule 3 of Rule 1 of Order XVII of the C.P.C., is also available to the learned trial Court to proceed with the suit forthwith. We have noted that many opportunities were given to the plaintiff/appellant on his request for production of evidence, which have even not been denied by the appellant. The argument of the learncd counsel that for applying penal provisions of Order XVII, Rule 3 of the C.P.C. the learned trial Court was bound to issue warning as well as impose fine before passing the final order. We are of the view that when the case is fixed for specific proceedings and party to the suit who is required to do some act for proceeding of the case neglects or intentionally disobeys the order of the Court, the Court has the powers to proceed with the case forthwith. In this case when the plaintiff/appellant after exhausting sufficient opportunities failed to produce evidence the learned trial Court has the powers to forthwith proceed with the case and when there was no evidence on behalf of the plaintiff in a case for specific performance the natural result was dismissal of the suit. We are fortified by the judgment of the august Supreme Court of Pakistan reported as Pirzada Amir Hussain etc. v. Mrs. Shamim Shah Nawaz etc. (1987 SCMR 249) as well as judgment of the Division Bench of this Court reported as Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and others (2002 CLC 1111). For ready reference Lahore High Court Amendment of Rule 1 of Order XVII of the C.P.C. is reproduced as under:-
(3) Where sufficient cause is not shown for the grant of an adjournment under sub-rule (1) the Court shall proceed with the suit forthwith".
The suit is for specific performance of agreement to sell against female defendants, who have denied the execution of the agreement to sell. The agreement to sell, photocopy of which is available on the record of the learned trial Court, is dated 13.10.2005. Astonishingly there is no date of performance mentioned in the agreement. The suit has been filed on 26.2.2007 and till its dismissal by the learned trial Court no evidence was produced by the plaintiff. The plaintiff/appellant was bound to offer sufficient reason for non-production of evidence for each and every date of hearing he sought adjournment. In the above circumstances, we hold that the learned trial Court was justified in invoking the penal provisions which were available with it under Order XVII, Rule 3 as well as Order XVII, Rule 1, Sub-Rule (3) of the C.P.C. when no justification was offered by the plaintiff before the learned trial Court as well as before this Court for non-production of evidence.
In view of what has been discussed above, no case for interference has been made out, therefore, this appeal stands dismissed with costs throughout
ZC/M-299/L Appeal dismissed.
[Lahore]
Before Amin-ud-Din Khan and Abid Aziz Sheikh, JJ
MUHAMMAD ASLAM BUTT----Appellant
Versus
Mst. KHALIDA PARVEEN and 3 others----Respondents
Regular First Appeal No.229 of 2009, heard on 11th October, 2013.
Civil Procedure Code (V of 1908)---
----O. XVII, Rr. 1 & 3---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Proceeding with the suit forthwith---Closure of evidence---Scope---Provision of O.XVII, R.3, C.P.C. was not the only provision for proceeding with the suit forthwith but sub-rule (3) of R.1 of O.XVII, C.P.C. was also available for the Trial Court to proceed with the suit forthwith---Many opportunities were given to the plaintiff on his request for production of evidence but he failed to produce the same---Court had powers to proceed with the suit forthwith when same was fixed for specific proceedings and party to the suit had neglected or intentionally disobeyed its order---Trial Court had power to proceed forthwith with the suit when plaintiff after exhausting sufficient opportunities failed to produce evidence---Plaintiff was bound to offer sufficient reason for non-production of evidence for each and every date of hearing he sought adjournment---Trial Court was justified in invoking the penal provisions which were available with it under O.XVII, R.3, C.P.C. as well as O.XVII, R.1, Sub-rule (3), C.P.C. when no justification was offered by the plaintiff for non-production of evidence---Appeal was dismissed with costs throughout. [paras. 5 of the judgment]
Pirzada Amir Hussain and others v. Mrs. Shamim Shah Nawaz and others 1987 SCMR 249 and Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and others 2002 CLC 1111 rel.
Muhammad Aslam v. Nazir Ahmed 2008 SCMR 948 distinguished.
Ch. Muhammad Imtiaz Bajwa for Appellant.
Nemo for Respondents.
Date of hearing: 11th October, 2013.
JUDGMENT
AMIN-UD-DIN KHAN, J.---Through this appeal the appellant has challenged the judgment and decree dated 6.4.2009, passed by the learned Civil Judge Ist Class, Sargodha, whereby suit for specific performance filed by the plaintiff/appellant after closing his right to produce evidence was dismissed.
2. Brief facts of the case are that the plaintiff/appellant on 26.2.2007, filed a suit for specific performance of contract dated 13.10.2005. Written statement was filed and the agreement was denied. The learned trial Court on 14.2.2008, framed the issues, parties were directed to submit list of witnesses, documents and certificate of readiness to produce evidence within seven days and the case was adjourned for evidence of the plaintiff for 19.4.2008. According to record, the Presiding Officer was on tour on the aforesaid date, therefore, Reader of the Court noted the presence of the learned counsel for the parties and adjourned the case for 26.6.2008 in accordance with the previous proceedings. On 26.6.2008, evidence of the plaintiff was not available and the case was adjourned to 18.9.2008. On 18.9.2008, same was the position and the case was adjourned to 25.11.2008. On 25.11.2008, the case was transferred to the other Court, even on the said date evidence of the plaintiff was not available and the case was adjourned for 16.1.2009. On 16.1.2009, evidence of the plaintiff was not available and the case was adjourned to 6.4.2009. Even on 6.4.2009, evidence of the plaintiff was not available, only learned counsel for the parties appeared before the learned trial Court and further request for adjournment was made for production of evidence, which was not acceded to by the learned trial Court and after closing the right of evidence under Order XVII, Rule 3 of the C.P.C. vide judgment and decree of the same date the suit was dismissed.
3. No one appeared on behalf of the respondents, therefore, we have heard the learned counsel for the appellant only and perused the record.
4. Learned counsel for the appellant argues that for invoking penal provisions of Order XVII, Rule 3 of the C.P.C. the Court was bound to issue warning with regard to the closure of evidence on the date prior to the passing of the impugned judgment and decree and further the Court was competent to impose fine for non-production of evidence on the said date. Learned counsel has relied upon Muhammad Aslam v. Nazir Ahmed (2008 SCMR 948). We have noted that on the fateful date it is not on record that the plaintiff appeared before the Court or was available. The case law relied upon by the learned counsel for the appellant is not applicable to the facts of this case. Even the plaintiff/appellant has not claimed his presence before the trial Court on the fateful date, therefore, plaintiff/appellant cannot take benefit of the case law referred to by the learned counsel.
5. So far as issuance of warning as well as imposing Fine before pressing into service penal clause of Order XVII, Rule 3 of the C.P.C. is concerned, in our view the provisions of Order XVII, Rule 3 of the C.P.C. are not the only provisions for proceeding with the suit forthwith. The provision of Order XVII, Rule 1 of the C.P.C., High Court Amendment Lahore, which is available as Sub-Rule 3 of Rule 1 of Order XVII of the C.P.C., is also available to the learned trial Court to proceed with the suit forthwith. We have noted that many opportunities were given to the plaintiff/appellant on his request for production of evidence, which have even not been denied by the appellant. The argument of the learncd counsel that for applying penal provisions of Order XVII, Rule 3 of the C.P.C. the learned trial Court was bound to issue warning as well as impose fine before passing the final order. We are of the view that when the case is fixed for specific proceedings and party to the suit who is required to do some act for proceeding of the case neglects or intentionally disobeys the order of the Court, the Court has the powers to proceed with the case forthwith. In this case when the plaintiff/appellant after exhausting sufficient opportunities failed to produce evidence the learned trial Court has the powers to forthwith proceed with the case and when there was no evidence on behalf of the plaintiff in a case for specific performance the natural result was dismissal of the suit. We are fortified by the judgment of the august Supreme Court of Pakistan reported as Pirzada Amir Hussain etc. v. Mrs. Shamim Shah Nawaz etc. (1987 SCMR 249) as well as judgment of the Division Bench of this Court reported as Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and others (2002 CLC 1111). For ready reference Lahore High Court Amendment of Rule 1 of Order XVII of the C.P.C. is reproduced as under:-
(3) Where sufficient cause is not shown for the grant of an adjournment under sub-rule (1) the Court shall proceed with the suit forthwith".
The suit is for specific performance of agreement to sell against female defendants, who have denied the execution of the agreement to sell. The agreement to sell, photocopy of which is available on the record of the learned trial Court, is dated 13.10.2005. Astonishingly there is no date of performance mentioned in the agreement. The suit has been filed on 26.2.2007 and till its dismissal by the learned trial Court no evidence was produced by the plaintiff. The plaintiff/appellant was bound to offer sufficient reason for non-production of evidence for each and every date of hearing he sought adjournment. In the above circumstances, we hold that the learned trial Court was justified in invoking the penal provisions which were available with it under Order XVII, Rule 3 as well as Order XVII, Rule 1, Sub-Rule (3) of the C.P.C. when no justification was offered by the plaintiff before the learned trial Court as well as before this Court for non-production of evidence.
In view of what has been discussed above, no case for interference has been made out, therefore, this appeal stands dismissed with costs throughout
ZC/M-299/L Appeal dismissed.
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