ORDER SHEET

Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

High Court Appeal No.118 of 2018

Date	Order with signature of Judge

Hearing Case (Priority) :

1. For orders on office objection / reply as at “A” :

2. For hearing of CMA No.1199/2018 (U/S 149 CPC) :

3. For hearing of Main Case :

11.12.2018 : Mr. Ahmar Fazeel, advocate for the appellant.

None present for the respondents.

…………

NADEEM AKHTAR, J. – This appeal is directed against order dated 12.03.2018 passed by a learned single Judge of this Court in Suit No.379/1980, whereby the said Suit filed by the appellant against the respondents for recovery of Rs.25,262,826.91 was dismissed on the ground that the appellant / plaintiff had failed to adduce evidence. It is contended by learned counsel for the appellant that the Suit could not be dismissed as it was not fixed on the relevant date either for the plaintiff’s evidence or for arguments, but was fixed only for orders on the Commissioner’s report. It is further contended that the Suit was dismissed despite the fact that the plaintiff’s counsel was on general adjournment on the relevant date and this fact was brought to the notice of the learned single Judge. It is also contended that the learned single Judge was not justified in declining the request for adjournment made on behalf of the plaintiff’s counsel on the ground of his general adjournment. It is pointed out that such request was declined and resultantly the Suit was dismissed only because of a directive issued by the Hon’ble Chief Justice of this Court that general adjournment will not be allowed by special benches constituted on the original side.

Vide order dated 05.11.2018 passed in the instant appeal, service upon respondent No.2 was held good in view of the bailiff’s report dated 23.05.2018, and notice to respondent No.1 was ordered to be published in newspaper. In compliance of the said order, notice for today was published in Urdu daily Nawa-e-Waqt on 28.11.2018. Despite proper service, the respondents have chosen to remain absent.

Perusal of the impugned order shows that the Suit was dismissed under Rule 3 of Order XVII CPC for want of the plaintiff’s evidence. The said Rule provides that where a party to a Suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the Suit for which time was allowed, the Court may, notwithstanding such default, proceed to decide the Suit forthwith. It is clear from the language of this Rule that the penal provisions thereof cannot be applied against a party to a Suit unless time has been granted by the Court to such party for any of the purposes specified in this Rule, and despite grant of time by the Court, the said party commits default in performing the act for which time was granted by the Court. The questions that have to be examined in the instant case are, (i) did the case of the appellant squarely fall within the purview and mischief of the penal provisions of Rule 3 ibid ; (ii) was any direction for the next date given by the Court to the appellant on the previous date to appear in person, or to cause attendance of its witnesses, or to produce evidence, or to perform any other act necessary to the further progress of the Suit ; and, (iii) if any such direction was given by the Court to the appellant on the previous date, was there any default on its part in complying with the same on the next date when the Suit was dismissed under Order XVII Rule 3 CPC.

Record shows that the appellant was not granted time by the Court on the previous date nor did the Court give any specific direction to the appellant on the said date for the next date to appear in person or to cause attendance of its witnesses or to produce evidence or to perform any other act necessary for further progress of the Suit ; and, on the next / relevant date when the Suit was dismissed under Order XVII Rule 3 CPC, a counsel was present on behalf of the appellant’s counsel. Therefore, the penal provisions of Order XVII Rule 3 CPC were not attracted in the case and the Suit could not be dismissed thereunder. This view expressed by us is supported by Sheikh Khurshid Mehboob Alam V/S Mirza Hashim Baig and another, 2012 SCMR 361, wherein the Hon’ble Supreme Court was pleased to hold that it was the consistent view of the Hon’ble Supreme Court that the evidence of a party cannot be closed under Order XVII Rule 3 CPC for non-production of evidence where the case on the previous date was not adjourned at the request of such party. Moreover, the Suit could also not be dismissed under Order XVII Rule 3 CPC as the appellant was not unrepresented and a counsel was present on the date of dismissal. In this context, reference may be made to Sardar Muhammad Ibrahim Khan V/S The Azad Jammu and Kashmir Government, PLD 1987 Supreme Court (AJ&K) 127, wherein it was held by the Hon’ble Supreme Court of Azad Jammu and Kashmir that there is ample authority in support of the proposition that when a party appears through counsel and asks for an adjournment, such party must be deemed to have appeared.

The impugned order shows that while dismissing the Suit under Order XVII Rule 3 CPC previous lapses on the part of the appellant were noted. It is well-established that previous default of a party, if any, is not to be taken note of while considering the question under Rule 3 ibid as to whether a party is entitled to grant of further opportunity or not. In this context, reference may be made to Messrs Raheem Steel Re-Rolling Mills and 4 others V/S Messrs Karim Aziz Industries (Pvt.) Ltd., 1988 CLC 654. The point that previous default(s) or conduct of a party should not prejudice the merits of his case, is further fortified by two Full Bench authorities of the Hon’ble Supreme Court ; namely, Seth Shivrattan G. Mohatta and another V/S Messrs Mohammadi Steamship Co. Ltd., PLD 1965 Supreme Court 669, and Babu Jan Muhammad and others V/S Dr. Abdul Ghafoor and others, PLD 1966 Supreme Court 461.

In view of the above discussion and the law discussed above, it follows that in order to attract the penal provisions of Rule 3 of Order XVII CPC, time must have been granted by the Court to the party for doing any of the acts mentioned therein on the next date ; time must have been granted by the Court at the request of the defaulting party ; and, the party must be in default on the next date in complying with the direction given to him by the Court at his request. It further follows that if the time has not been granted by the Court on the previous date at the instance of the party, against whom order is required to be made, then the punitive provisions of Rule 3 ibid cannot be applied against such party though in default on the next date. In the instant case, it cannot be said that the date on which the Suit was dismissed under Order XVII Rule 3 CPC was given at the instance of the appellant, or any direction was given to the appellant on the previous date to do any of the acts mentioned in Rule 3 ibid on that date, or the appellant committed default on that date in complying with any such direction. Therefore, the provisions of Rule 3 ibid were not attracted to the facts of the case in our humble opinion.

CMA No.1199/2018 has been filed by the appellant seeking permission for payment of the deficit Court fee. The application is disposed of by directing the appellant to pay the deficit / requisite Court fee within fifteen (15) days. Learned counsel for the appellant undertakes that evidence in the Suit will be produced / led by the appellant on the date fixed for such purpose. In view of the above discussion and the undertaking given by the learned counsel and subject to payment of the deficit / requisite Court fee within fifteen (15) days from today, the impugned order is hereby set aside and Suit No.379/1980 is restored to its original position for decision on merits as expeditiously as possible.

The appeal is allowed in the above terms with no order as to costs.

J U D G E