GHULAM QADIR alias QADIR

BAKHSH VS Haji
MUHAMMAD SULEMAN
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 2002 C L C 1111

[Lahore]

Before Muhammad Khalid Alvi and Nazir Ahmad Siddiqui, JJ

GHULAM QADIR alias QADIR BAKHSH---Appellant

versus

Haji MUHAMMAD SULEMAN and 6 others---Respondents

Regular First Appeal No.87 of 1999, decided on 16/10/2001.

(a) Civil Procedure Code (V of 1908)---

----O. XVII, Rr.1(3) (Lahore Amendment) & 3---Closing of evidence-- Suit, dismissal of---Despite many opportunities, granted to
plaintiff he failed to produce his evidence---Trial Court, closed evidence of plaintiff and dismissed the suit under O.XVII, R.3,
C.P.C.---Plea raised by the plaintiff was that instead of dismissing the suit under O.XVII, R.3, C.P.C., the Trial Court, should
have proceeded under O.XVII, .R.1(3), C.P.C.---Validity---Where the adjournments were made on the request of the plaintiff
and he failed to comply with the order of the Trial Court in producing his evidence, the Court had rightly proceeded under
O.XVII, R.3, C.P.C. instead of O.XVII, R.1(3), C.P.C.---Order passed by the Trial Court, whereby evidence of the plaintiff was
closed and the suit was dismissed, was unexceptionable and the same was not interfered with by the High Court.

(b) Civil Procedure Code (V of 1908)---

----O. XVII, R.1(3)---Evidence, failure to produce---Dismissal of suit under O.XVII, R.1(3), C.P.C.---Jurisdiction of Trial Court
---Scope-- Where it has been made impossible for the Trial Court by defaulting party, to proceed with the matter by failing to
bring any material on record, provisions of O.XVII, R.1(3), C.P.C, does not debar the Trial Court from dismissing the suit.

(c) Civil Procedure Code (V of 1908)---

----O. XIV, R.5---Issues, amendment of---Delay of 4-1/2 years in filing application for amendment of issues---Effect---Where the
application was filed with the object to delay final disposal of the case and to avoid production of evidence, the application was
rightly dismissed by Trial Court.

Mian Shamsul Haq Ansari for Appellant.

Syed Nizam-ud-Din Shah and Syed Qaisar Hassan Shah for Respondents.

Ch. Saghir Ahmad for Respondent No.2.

Date of hearing: 8th October, 2001.

JUDGMENT

MUHAMMAD KHALID ALVI, J.--- The brief facts of the case are that the appellant filed a suit for cancellation of registered
power of attorney, dated 26-6-1990 and a sale-deed, dated 30-6-1990 in favour of respondent No.2 regarding 40 Kanals of land
detailed in head note of the plaint. The suit was contested by the respondents, written statements were filed, 12 issues were
framed by the trial Court on 6-11-1994 and the case was fixed for evidence of the appellant/plaintiff for 3-1-1995 on which date
the evidence was not produced and a request for adjournment was made. The case was adjourned to 12-3-1995. Again a
request for adjournment was made and consequently it was adjourned to 24-4-1995. Since 24-4-1995 the case was adjourned
for one reason or the other till 20-2-1998, when the case was again fixed for evidence of the plaintiff/appellant for 19-3-1998.
On 19-3-1998 the evidence of the plaintiff was not in attendance and the case was adjourned to 27-4-1998. Again a request
was made by the 'appellant which was granted for 4-6-1998. On this date as well the appellant failed to produce his evidence
and requested for further adjournment. On 18-7-1998 the learned Presiding Officer was on leave, the plaintiff's evidence was
not in attendance. On 15-9-1998 grandson of the appellant requested for adjournment on the ground that some compromise is
being effected, however, the Court directed that in case there is no compromise the appellant shall produce his evidence and
the case was adjourned to 29-10-1998. On 29-101998 no compromise was effected and the evidence of the plaintiff was not in
attendance. However, the learned trial Court strictly ordered to produce evidence on 24-11-1998. On 24-11-1998 a new
counsel was appointed by the appellant and a request for adjournment was made. On 30-11-1998, the learned Presiding
Officer was on leave, however, four witnesses were in attendance, therefore the case was adjourned to 14-12-1998. On
14-12-1998 again due to non-availability of the learned Presiding Officer the case was adjourned to 4-1-1999. On 4-1-1999
learned counsel for the appellant requested for further adjournment, whereupon learned trial Court granted a last opportunity for
production of appellant's evidence and the case was adjourned to 4-2-1999. On 4-2-1999 an application under Order 14, rule 5,
C.P.C. was placed on record and proceeding continued on it till 29-6-1999 when finally this application was dismissed and the
case was adjourned to 14-7-1999. The Court made it clear that this would be the last opportunity for the plaintiff to produce his
evidence as the case related to the year 1990. On 14-7-1999 neither the plaintiff appeared with his evidence nor his learned
counsel was in attendance, however, one Mr. Qamar-ul-Hassan Thaheem, Advocate appeared on behalf of learned counsel for
the plaintiff. Since the plaintiff failed to produce his evidence, learned trial Court closed the evidence of the appellant/plaintiff
under Order 17, rule 3, C.P.C. and consequently dismissed the suit of the plaintiff.

2. Learned counsel for the appellant while relying on Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PLD
1981 SC 434, Haji Muhammad Ramzan Saifi v. Mian Abdul Majid and others PLD 1986 SC 129 and Qutab-ud-Din v. Gulzar
and 2 others PLD 1991 SC 1109 contends that on 29-6-1999 the appellant did not make a request for adjournment, therefore,
the learned trial Court had no jurisdiction to proceed against the appellant under Order 17, rule 3, C.P.C. on 14-7-1999. It is
next contended by relying on Rahim Bux and 2 others v. Mst. Nazir Khanum and another 1980 CLC 595 that since there was
no material on the file of learned trial Court to pronounce the judgment, therefore, the learned trial Court should have
proceeded under Order 17, Rrule 1(3) (Lahore amendment), instead of Order 17, rule 3, C.P.C. It is also contended that the
impugned order was passed in early hours of the day, the Court should have waited for a little while before passing such a
stringent order. He relies on Ghulam Muhammad v. Altaf Hussain and another 1981 SCMR 533.

3. Learned counsel for the appellant has also challenged the order of learned trial Court passed on 29-6-1999 with respect to
his application under Order 14, rule 5, C.P.C. whereby he had prayed that onus of Issue No.1 should be placed on defendants.
His contention is that it is a factual issue and it is to be proved in the positive and not in the negative, the onus should have
been on the defendants/respondents. He refers to Mst. Mulkhan Bibi v. Muhammad Wazir Khan PLD 1959 (W.P.) Lah. 710. It is
next contended that since the respondents were the beneficiary of the documents in question, therefore, the onus lay on them
to prove the correctness and legality of the documents. He refers to Taj Din v. Abdur Rehman PLD 1953 (W.P.) Kar. 825.

4. On the other hand learned counsel for the respondents contends that this case was filed in the year 1990. The issues were
framed on 6-11-1993. The appellant obtained numerous adjournments on his "request for production of his evidence, who
failed to produce the same. Therefore, his evidence was rightly closed by the learned trial Court. It is next contended that the
conduct of the appellant towards progress of the case was not above board; rather the same was contumacious inasmuch as
he tried all tactics to prolong the litigation and made it impossible for the trial Court to proceed with the case, therefore, his
conduct disentitled him to any further adjournment.

5. Learned counsel for the respondents has also opposed the arguments of learned counsel for the appellant with respect to his
application under Order 14, rule 5, C.P.C. and has contended that the issues were framed on 6-11-1994 while this application
was filed by the appellant on 4-2-1999, about 4-1/2 years after framing of issues when already the case was fixed on many
occasions for his evidence, therefore, this application was based on mala fide only to protract the litigation.

6. We have considered the arguments of learned counsel for the parties and have also perused the record of the learned trial
Court. '

7. The appellant made requests for adjournment to produce his evidence on 3-1-1995, 12-3-1995, 24-7-1998,
4-6-1998,24-11-1998 and4-1-1999. On 4-1-1999 the case was adjourned by learned trial -Court for 4-2-1999 and it was made
clear to the appellant that it will be the last opportunity for him to produce his evidence. On 4-2-1999 instead of producing his
evidence the appellant moved an application under Order 14, rule 5, C.P.C. for shifting of onus of issue No.1. This application
after defy of about 4-1/2 years clearly indicates the intention of the appellant that he merely wanted to delay the further
progress of the case which was filed in the year 1990 by him. The said application was finally dismissed by the learned trial
Court on 29-6-1999 and again the plaintiff was warned that this is the last opportunity for production of his evidence on
14-7-1999 on which date the appellant and his learned counsel did not appear in the Court and instead one Mr.
Qamar-ul-Hassan Thaheem, Advocate was asked to make their representation without any evidence. The request of the
appellant for proceeding against him under Order 17, rule 3 in this case would relate back to the date of 4-1-1999 when he was
given the final opportunity to produce his evidence on 4-2-1999 when instead of getting his evidence recorded he moved an
application under Order 14, rule 5, C.P.C. When the proceeding in the said application culminated in its dismissal on 29-6-1999
a final opportunity was again granted to the appellant but he failed to produce his evidence on 14-7-1999, therefore, the order
passed by learned trial Court closing his evidence is unexceptionable.

8. In view of the above discussion the argument of learned counsel that the Court should have proceeded under Order 17, rule
1(3), C.P.C. instead of Order 17, rule 3, C.P.C. looses its significance as it is held that adjournments were made on the request
of the appellant and he failed to comply with the order of the learned trial Court in producing his evidence. Even otherwise
Order 17, rule 1(3), C.P.C. does not debar the Court from dismissing the suit after it has been made impossible for the Court by
the defaulting party to proceed with the matter by failing to bring any material on record. In the instant case suit was filed by the
appellant in 1990 and over a period of nine years he failed to bring any evidence on record, therefore, he practically made it
impossible for the learned trial Court to further progress with the suit, therefore, learned trial Court had no option but to close his
evidence and dismissed the suit.

9. So far as the argument of learned counsel for the appellant that the order was passed in the early hours of the day is
concerned, is not substantiated from the record as the time is not given in the impugned order, nor any request was made by
Mr. Qamar-ul-Hassan Thaheem, Advocate for getting the case in waiting for appearance of the original counsel for appellant or
for production of evidence.

10. So far as the arguments of learned counsel for the appellant with respect to his application under Order 14, rule 5, C.P.C.
are concerned, same are equally devoid of merit in view of the above finding that the said application was filed with a delay of
4-1/2 years with only one, object i.e. to delay final disposal of the case and to avoid the producing of evidence on 4-2-1999.

11. For what has been stated above, we find no merit in this appeal which is accordingly dismissed. No order as to costs.

Q.M.H./G-131/LAppeal dismissed