ABDUL AZIZ KHAN VS SHAH

JAHAN BEGUM
Downloaded from
PakCaselaw.com
 P L D 1971 Supreme Court 434

Present : Muhammad Yaqub All, Wahiduddin Ahmad and Salahuddin Ahmed, JJ

Maulvi ABDUL AZIZ KHAN-Appellant

versus

Mst. SHAH JAHAN BEGUM AND 2 OTHERS - Respondents

Civil Appeal No. 209 of 1970, decided on 31/03/1971.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 28th May 1970, in Civil Revision
No. 43 8 of 1970)..

(a) Civil Procedure Code (V of 1908), O. XVII, r. 3-Special leave to appeal-Granted to consider whether trial Court's order
under O. XVII, r. 3 was illegal because it did not proceed to decide suit "forthwith".

(b) Civil Procedure Code (V of 1908), O. XVII, r. 3-Applica tion-Rule does not apply unless default committed by a party in
doing act for which time was granted.

This rule applies to a case where time has been granted to a party at his instance, to produce evidence, or .to cause the
attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has
been committed by such patty in doing the act for which the time was granted.

(c) Civil Procedure Code (V of 1908), O. XVII, r. 3-Word "forthwith"-Does not mean on same day but within a reasonable time.

The word "forthwith" does not mean on the same day. The reasonable meaning of this word in the context of Order XVII, rule 3,
C. P. C., is that the Court should proceed to decide the suit within a reasonable time under the circum stances of the case. [p.
438]C

Bahadar Shah and others v. Sharaf Major and others P L D 1967 Lah. 154 ; Induytrial Sales and Services, Karachi and another
v. Archifar Opel Laboratories Ltd., Karachi P L D 1969 Kar. 418 ; 41st. Jaggo v Kanhaiya Lal A I R 1957 All. 344 ; Kartar Devi v.
Surasti and another (1908) 9 P R 68 r Sher Ali v. Mangu and others A I R 1919 Lah. 344 ; Osborn's Dictionary ; Webster's
Dictionary; Black's Law Dictionary and Wharton Law Lexicon, p. 131 ref.

Sh. Aftab Hussain, Senior Advocate Supreme Court instructed by Rao Muhammad Yusuf Khan, Advocate-on-Record for
Appellant.

Ch. Muhammad Iqbal, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate-on-Record for Respondent No. 1.

Respondents Nos, 2 and 3 : Ex parte.

Dates of hearing : 30th and 31st March 1971.

JUDGMENT

WAHIDUDDIN AHMAD, J.-This appeal by special leave is directed against the order of tire High Court of West Pakistan,
Lahore, in Civil Revision No. 438 of 1970, dated the 28th May 1970. By this order, a learned Single Judge of the High Court
dismissed the revision petition filed by the appellant in limine. It has arisen in the following circumstances:-

The dispute between the parties is in respect of the land allotted to respondent No. 1 against the Produce Index Units inherited
by her from her brother Nawab Muhammad Shamshad All- Khan. The appellant's case is that respondent No. I entered into an
agreement of sale in respect of this property and appointed and constituted respondent No. 2 as her general Attorney to
complete the sale. It is alleged that on the basis of these documents, mutation was entered and sanction was accorded in
favour of the appellant at the instance of respondent No. 1 through her general Attorney, respondent No. 2. Respondent No. 1
challenged this agreement and filed a suit for declaration that the alleged agreement, the general power of attorney and
mutation of sale were illegal, and void as they were obtained by fraud and misrepresentation. She also prayed that the same
may be cancelled and a permanent injunction may be issued against the appellant and respondent No. 2.

The suit was resisted by the appellant. On the 12th April 1967, issues were framed. The evidence of respondent No. 1 was
finished by the 3rd July 1969. The appellant was ordered to produce his evidence on the 3rd November 1967, but he failed to
summon any evidence for that date and the case was adjourned to 3rd December 1969. On the 3rd December 1969, the Court
was on leave and the case was adjourned to 5th January 1970. On this date the Court fixed the case for 30th of March 1970,
for evidence of the appellant. No summons were issued to the witnesses for this date and the appellant failed to produce his
evidence on that date. He was burdened with costs of Rs. 50 and the case was again adjourned to 30th April 1970. The
appellant was directed to produce evidence on that date on his own responsibility. For this date only one witness was served.
He was examined and the Court refused to adjourn the case for the summoning of the other witnesses. The case of the
appellant was closed under Order XVII, rule 3, C. P. C. The trial Court, after recording the evidence of respondent No. 3,
adjourned the case for argument and production of certified copies of affidavits by tie counsel for respondent No. 2 to 16th
January 1970.

The appellant challenged this order in revision before the High Court, which was dismissed by a learned Single Judge in limine
on the 28th May 1970. The appellant challenged this order in Civil Petition for Special Leave to Appeal No. 143 of 1970 and
sought permission for leave to appeal on two grounds:-

(i) that the appellant was not negligent in the conduct of his case, and

(ii) that as the trial Court failed to decide the suit forthwith, the order, under Order XVII, rule 3, was illegal.

This Court, by order dated the 30th June 1970, came to the conclusion that the appellant has been negligent in conducting the
case before the trial Court and refused to grant leave on that ground. Leave was, however, granted to consider the question as
to whether the learned trial Court's order under Order XVII, rule 3, was illegal because it did not proceed to decide the suit
forthwith.

The short question, therefore, for consideration in this case is whether the order of the trial Court is illegal because it did not
proceed to decide the suit forthwith after closing the case of the appellant under Order XVII, rule 3, C. P. C.

Mr. Aftab Hussain, learned counsel for the appellant, has relied on two decisions of the West Pakistan High court in the cases
of Bahadar Shah and others v. Sharaf Major and others (P L D 1967 Lah. 154) and Industrial Sales and Services, Karachi and
another v. Archifar Opel Laboratories Ltd., Karachi (P L D 1969 Kar. 418) He has also referred to the case of Mst Jaggo v.
Kanhaiya Lal (A I R 1957 All. 344). It was held in the first two mentioned cases that by a decision forthwith it is meant that the
Court must decide the case on the same day and cannot adjourn the hearing to some other date and then purport to decide it
under this rule. The learned counsel contended that in the present case, the learned trial Court, after closing the case of the
appellant under Order XVII, rule 3, C. P. C., recorded the evidence of respondent No. 3 and adjourned the case for argument
and production of certified copies of affidavit by the counsel for respondent No. 2, to 16th June 1970, and, therefore, the order
in question does not fall within the provisions of Order XVII, rule 3, C. P. C. According to the learned counsel, if the case was
adjourned to another date, the trial Court should have granted the appellant further time to adduce his evidence. He further
contended that the provisions of Order XVII, rule 3, C. P. C., are penal and they must be construed strictly, and in support of it
he referred the case of Kartar Devi v. Surasti and another ((1908) 9 P R 68). He also contended that Order XVII, rule 3, C. P. C.
is enabling rule and not a mandatory one. If the circumstances are such that the Court cannot decide the suit forthwith on the
material before it, it should not avail itself of the provisions of that rule. In support of his contention, he relied on the case of
Sher Ali v. Mangu and others (A I R 1919 Lah.344).

On the other hand, Ch. Mohammad Iqbal, learned counsel for the respondent No. f, has contended that the words "proceed to
decide the suit forthwith" does not mean to decide the suit on the same day. According to him, forthwith means within a
reasonable time.

After considering the contention of the learned counsel for the parties, we are satisfied that the word "forthwith" in Order XVII,
rule 3, C. P. C., means within a reasonable time under the circumstances of the case. In order to appreciate the arguments of
the learned counsel, it is necessary to reproduce Order XVII, rule 3, C. P. C., which is as under:-

"Where any 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 has been allowed, the Court
may, notwithstanding such default, proceed to decide the suit forthwith."

It will be seen that this rule applies to a case where time has been granted to a party at his instance, to produce evidence, or to
cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless
default has been committed by such party in doing the act for which the time was granted. In the present case, the appellant
was granted time on several occasions to produce his evidence and on the last occasion he was granted time to produce
evidence on his own responsibility. Thus Order XVII, rule 3, C. P. C., was attracted to the facts of the present case. The
contention of the learned counsel for the appellant that "proceed to decide the suit fcrthwith" mean to decide the suit on the
same day does not appear to be correct. In ordinary dictionary meaning "forthwith" means within a reasonable time. In Osborn's
Dictionary, "forth with" means as soon as reasonably can be. In Webster's Dictionary, "forthwith" means, without delay; hence
within a reasonable time. In Black's Law Dictionary, "forthwith" means asunder : --

Immediately; without delay, hence within a reasonable time under the circumstances of the case; promptly and with reasonable
despatch; within such time as to permit that which is to be done, to be done lawfully and according to the practical and ordinary
course of things to be performed or accomplished. According to Wharton Law Lexicon at p. 131, "forthwith" means as under :-

"When a statute or rule of Court requires an act to be done forthwith, it means that the act is to be done within a reasonable
time having regard to the object of the provision and the circumstances of the case."

Thus it is quite clear that the word "forthwith" does not mean on the same day. The reasonable meaning of this word in the
context of Order XVII, rule 3, C. P. C., is that the Court should c proceed to decide the suit within a reasonable time under the
circumstances of the case. In our opinion, the view expressed in above decision that the suit should be decided on the same
day is not in accordance; with law.

In view of the above conclusion, we are satisfied that the trial Court was perfectly justified in adjourning the case for argument
so as to enable him to proceed with the suit forthwith. We, therefore, find no fault with the order of the trial Court and are
satisfied that it is a perfectly legal order. There is, therefore, no force in this appeal which is dismissed with costs.

Appeal dismissed.