2026 C L C 328

 2026 C L C 328

[Lahore]

Before Masud Abid Naqvi and Malik Muhammad Awais Khalid, JJ

Dr. SAMIA ALTAF ---Appellant

Versus

LAHORE UNIVERSITY OF MANAGEMENT SCIENCES through

Registrar and others ---Respondents

R.F.A. No. 11082 of 2025, decided on 24th February, 2025.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Suit for recovery of Rs. 6,70,00,000/---Failure to

produce evidence---Dismissal of suit---Principle---Appellant/plaintiff

was aggrieved of dismissal of suit on failure to produce evidence---

Validity---As per record, the case had been adjourning for recording

evidence of the appellant till 18.11.2024 for more than 1 year after

framing of issues---Appellant availed sufficient opportunities for

producing and recording of her evidence but she remained unable

to do the same---Trial Court granted ample opportunities and even

absolute last and final opportunity was granted to her with the

warning i.e. if evidence would not be produced her right to produce

evidence would be closed and before passing impugned order cost

was imposed in presence of the appellant with the said warning---

During that span, statement of even a single witness could not be

recorded---No other option was left with the Trial Court except to

invoke the penal jurisdiction of O.XVII, R.3, C.P.C.---From the bare

perusal of said facts and referred provisions of law it became crystal

clear that the trial Court ordered a specific warning and imposition

of cost therefore once the final opportunity was granted along with

a clear warning, the Court must enforce its order strictly and

without exception---Lis of the present matter remained pending

before the Trial Court for almost more than three years and the

other party kept on facing the agony of the trial for such a long

period---Appellant could not produce her evidence before the Trial

Court despite availing reasonable opportunities---Lis was prolonged

on one pretext or the other despite clear orders of the Trial Court---

Cases must be decided promptly, otherwise it causes heavy backlogs

of controversies between the parties, that amounts to abuse of legal

system and a hurdle in fair and timely disposal of cases---In such

circumstances, case of the appellant squarely fell within the mischief

of provision of O.XVII, R.3, C.P.C. and appellant's suit was rightly

dismissed by the Trial Court after affording reasonable and justified opportunities to produce her evidence---Appeal being devoid of any

force and substance was dismissed in limine.

Moon Enterpriser CNG Station, Rawalpindi v. Sui Northern Gas

Pipelines Limited through General Manager, Rawalpindi and another

2020 SCMR 300; Duniya Gul and another v. Niaz Muhammad and

others PLD 2024 SC 672 and Lutfullah Virk v. Muhammad Aslam

Sheikh PLD 2024 SC 887 rel.

Hafiz Rehman Aziz for Appellant.

ORDER

This regular first appeal under section 96 read with Order XLI of the

Code of Civil Procedure, 1908, (C.P.C.) has been preferred against the

order dated 18.11.2024 passed by learned Civil Judge, Lahore, whereby

suit filed by the appellant/plaintiff was dismissed under Order XVII

Rule 3 of C.P.C.

2. The facts culminating into the impugned order and decree

emanate from the suit for recovery of damages of Rs.6,70,00,000/- filed

by the appellant against the respondents/defendants in which notices

were issued to them. The respondents/ defendants entered appearance

and contested the suit by filing their written statement while raising

certain legal as well as factual objections. Out of divergent pleadings of

the parties, the following issues were framed on 28.4.2023:-

1. Whether the plaintiff is entitled for the decree of recovery of

damages of Rs.670,00,000/- against the defendants? OPP.

2. Whether suit of the plaintiff is false, frivolous and baseless

and liable to be dismissed with special costs under Section

35-A C.P.C.? OPD.

3. Relief.

The parties were directed to produce their respective evidence. The

appellant could not produce evidence before the trial court despite the

various opportunities, warnings and cost, thereafter, her suit was

dismissed under Order XVII Rule 3, C.P.C. vide order dated 18.11.2024

(impugned order). The appellant preferred an appeal before District

Judge, Lahore, assailing the impugned order but the same was

dismissed as withdrawn vide order dated 14.1.2025 in order to avail

proper remedy before appropriate forum as value of the suit exceeds

from the jurisdiction of the District Court. Hence, the instant appeal.

3. We have heard the arguments of learned counsel for the parties

and perused the available record as well as have minutely gone

through the impugned order. 4. Precisely, the above mentioned issues were framed by the trial

court on 28.4.2023 and lists of witnesses were submitted on 05.5.2023

from both parties and the case was adjourned for evidence of the

appellant on 06.6.2023. Thereafter, the case kept on adjourning on

various reasons including strike of lawyers and leave of learned

Presiding Officer. On 12.6.2024 at the request of the appellant the case

was adjourned for evidence for 15.7.2024. On the said date, evidence of

the appellant was not produced and at her request the case was

adjourned for recording evidence of appellant with the specific

assertion that if evidence would not be produced on the next date of

hearing, right to produce evidence will be closed. On the next date i.e.

10.9.2024, the appellant being in attendance again requested for

adjournment to produce evidence and in the interest of justice last and

final opportunity was granted with the warning that if evidence would

not be produced her right to produce evidence will be struck off while

securing the signatures and thumb impression of the appellant on the

order sheet. Despite of being warned previously she did not produce

any evidence on the consecutive dates of hearing i.e. 08.10.2024 and

28.10.2024. The learned counsel for the respondents/defendants raised

objection but the trial court granted last opportunity on 28.10.2024 to

the appellant/plaintiff to produce evidence by imposing cost of Rs.500/-

with the clear-cut warning and specific order that if evidence would

not be produced on the next date her right to produce evidence will be

closed. On 18.11.2024, the appellant again prayed for an adjournment

to produce evidence which was vehemently opposed by learned

counsel for the respondents/defendants and as a result thereof suit of

the appellant was dismissed under Order XVII, Rule 3, C.P.C. through

impugned order.

5. Succinctly, the case has been adjourning for recording evidence of

the appellant till 18.11.2024 for more than 1 year after framing of

issues. The appellant availed sufficient opportunities for producing

and recording of her evidence but she remained unable to do the

same. The trial court granted ample opportunities even absolute last

and final opportunity was granted to her with the warning i.e. if

evidence would not be produced her right to produce evidence will be

closed and before passing impugned order cost was imposed in

presence of the appellant with the warning supra. During this span

statement of even a single witness could not be recorded. No other

option was left with the trial court except to invoke the penal

jurisdiction of Order XVII, Rule 3, C.P.C. which is reproduced for ready

reference as under:-

3. Court may proceed notwithstanding either party fails to produce

evidence, etc.-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.

From the bare perusal of above facts and referred provisions of law

it becomes crystal clear that the trial court ordered a specific warning

and imposition of cost therefore once the final opportunity was

granted along with a clear warning, the court must enforce its order

strictly and without exception. The August Supreme Court of Pakistan

in a case reported as Moon Enterpriser CNG Station, Rawalpindi v. Sui

Northern Gas Pipelines Limited through General Manager, Rawalpindi

and another (2020 SCMR 300) held as under:-

6.---Where the Court has passed an order granting the last

opportunity, it has not only passed a judicial order but also made

a promise to the parties to the lis that no further adjournments

will be granted for any reason. The Court must enforce its order

and honour its promise. The order to close the right to produce

evidence must automatically follow failure to produce evidence

despite last opportunity coupled with a warning.

6. Matter can be examined from another angle, the litigation

remained pending before the trial court for almost more than three

years and the other party kept on facing the agony of the trial for such

a long period. Reliance in this regard is placed on the case law

reported as Duniya Gul and another v. Niaz Muhammad and others

(PLD 2024 Supreme Court 672) wherein it has been held as under:-

7.---In our view, it is imperative for the court to exercise vigilance

and refrain from granting adjournments so liberally and

without any compelling reasons. Such a cautious approach is

necessary to prevent abuse of the legal system, ensure a fair and

timely resolution of cases, and optimize the use of judicial

resources. In this regard, the Code of Civil Procedure, 1908

("C.P.C.") under Order XVII, Rule 3, empowers the court to

proceed to decide the suit forthwith if a party, to whom time has

been granted, fails to produce evidence, secure the attendance of

witnesses, or perform any other act necessary for the further

progress of the suit. For convenience, the said Rule 3 is

reproduced hereunder for ease of reference:

"3. Court may proceed notwithstanding either party fails to produce

evidence, etc: 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 each default, proceed to decide

the suit forthwith.

"8.--Recently, the above provision of law was thoroughly considered

and deliberated upon by this Court in the case of Moon

Enterpriser CNG Station, Rawalpindi v. Sui Northern Gas

Pipelines Limited through General Manager, Rawalpindi, and

another (2020 SCMR 300). The Court, after considering the case

law available on the subject, held that the following two

conditions must be satisfied before applying the above penal

provision to close the right of a party to produce evidence:

i. that time must have been granted at the request of a party to

the suit to adduce evidence with a specific warning that said

opportunity will be the last and failure to adduce evidence

would lead to closure of the right to produce evidence; and

ii. that the same party on the date which was fixed as the last

opportunity fails to produce its evidence.

9 ..

10. It is relevant to observe here that when the last opportunity to

produce evidence is granted and the party has been duly warned

of the consequences, the court must execute its order

consistently and strongly, without exceptions. Such a measure

would not only realign the system and reaffirm the authority of

the law but also curb the trend of seeking multiple

adjournments on frivolous grounds, which serve to needlessly

prolong and delay proceedings without valid or legitimate

justification. Moreover, when the court issues an order

providing the final chance, it not only issues a judicial order but

also extends a commitment to the parties that no further

adjournments will be permitted for any reason. The court must

stand by its order and uphold its commitment, leaving no room

or option for any alternative action.

7. The appellant could not produce her evidence before the trial

court despite availing reasonable opportunities. The lis was prolonged

on one pretext or the other despite clear orders of the trial court. In

such manner the cases must be decided promptly which causes heavy

backlogs of controversies between the parties, otherwise this amounts

to abuse of legal system and a hurdle in fair and timely disposal of

cases. The August Supreme Court of Pakistan in case reported as

Lutfullah Virk v. Muhammad Aslam Sheikh (PLD 2024 Supreme Court

887) observed as under: 7.---It is unfortunate that adjournments have become a plague for

the country's justice system. On 31 December 2023, a net

pendency of 2.26 million cases was reported in the country and

1.86 million of the cases out of the total pendency, which is

around 82%, are pending adjudication before the District

Judiciary and despite this mammoth pendency, which

undoubtedly has only grown since 31 December 2023, the

adjournment culture continues unabated - which robs litigants

of the right to speedy justice and further exacerbates the

inefficient judicial system crisis. The failure of the courts to deal

promptly with backlogs involves very human consequences:

controversies are prolonged; hard feelings emphasized; families

suffer privation from their inability to obtain relief. As a result,

people seeking relief become embittered and hate the courts and

the law because the legal profession has not lived up to its

responsibilities in a field where its responsibilities are primary

and almost exclusive.

"8 ..There is a prevalent and concerning trend of frequent

adjournment requests in lower courts, which amounts to an

abuse of the process of the court. This practice has significantly

contributed to a substantial backlog of litigation in the lower

judiciary. It is imperative that we actively discourage this

behavior to ensure the prompt delivery of justice to the citizens

of Pakistan. By curbing the routine use of adjournments, we can

expedite legal proceedings, alleviate the burden on the lower

judiciary, and ultimately enhance the efficiency of the judicial

system. This, in turn, will contribute to a more timely and

effective resolution of legal matters, promoting access to justice

for all."

As a sequel of above discussion and seeking guidance from the

Judgments supra, we are of the view that case of the appellant

squarely falls within the mischief of provision of Order XVII, Rule 3,

C.P.C. and appellant s suit was rightly dismissed by the trial court after

affording reasonable and justified opportunities to produce her

evidence.

8. Instant appeal being devoid of any force and substance stands

dismissed in limine. No order as to costs.

JK/S-56/L Appeal dismissed.