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Official Citation: 2025 IHC 390
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: Multi Professional Co-Operative Housing Society vs M/s AGECO Private JUDGMENT
Ruling Summary: This decision was rendered by the Islamabad High Court on 2024-12-31, officially reported as 2025 IHC 390. In this matter between Multi Professional Co-Operative Housing Society and M/s AGECO Private JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025IHC390
Court Name: Islamabad High Court Judge(s): Saman Rafat Imtiaz Title:Multi Professional Co-Operative Housing Society vs M/s AGECO Private
JUDGMENT
Reported As: 2025 IHC 390 Result: Appeal Dismissed Judgment
JUDGMENT SAMAN RAFAT IMTIAZ, J.- 1. This Appeal has been filed by the Appellant/Plaintiff [Multi Professional Co-Operative Housing Society] to challenge the Order and Decree dated 6-4-2015 ("Impugned Order and Decree") passed by the learned Civil Judge, 1st Class, (West) Islamabad ("Trial Court"), whereby the Appellant/Plaintiff's right to produce evidence has been struck off and the Suit for Recovery of Damages ("Suit") filed by the Appellant/Plaintiff against the Respondent/Defendant [Messers AGECO (Pvt.) Limited] has been dismissed under Order XVII, Rule 3, C.P.C for want of evidence. 2. The facts of the case, as per the Memo of Appeal, are that an Agreement dated 2-3-2010 ("Agreement") was executed between the Appellant/Plaintiff and the Respondent/Defendant for the supply and installation of solar lights along with solar panels, batteries, etc. in Sectors F17, B-17, and E-11, Islamabad. According to the Appellant/Plaintiff the solar panels, lights, and batteries installed by the Respondent/Defendant were defective and not in accordance with the terms and conditions of the Agreement. As a result the Appellant/Plaintiff filed a Suit for Recovery of Damages amounting to Rs.28,845,101/- along with profit/compensation at the rate of 15% per annum against the Respondent/Defendant before the Trial Court. The Respondent/Defendant filed a written statement denying the allegations levelled by the Appellant/Plaintiff. 3. Issues were framed and the case was fixed for the Appellant/Plaintiff's evidence. However, despite a number of opportunities granted to the Appellant/Plaintiff to adduce evidence the Appellant/Plaintiff failed to do so, which resulted in the passing of the Impugned Order and Decree.
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The Impugned Order notes that the case was fixed for evidence of the Appellant/Plaintiff subject to cost as last opportunity along with notice under Order XVII, Rule 3, CPC yet no one turned up for the Appellant/Plaintiff and that the Appellant/Plaintiff has failed to produce his evidence without reasonable justification therefore the Appellant/Plaintiff's right to produce evidence is struck off and suit is dismissed for want of evidence. Hence, the instant Appeal has been filed before this Court. 4. The learned counsel for the Appellant pointed out that on 20-1-2015 none was present on behalf of the Appellant/Plaintiff yet the Trial Court has issued notice under Order XVII, Rule 3, CPC, which was erroneous as such notice cannot be issued in the absence of the parties. The learned counsel further submitted that on 20-1-2015 as well as on 24-2-2015 the order sheet records that the matter is being adjourned as per request without specifying as to whose request. He argued that the Appellant/Plaintiff's right to lead evidence could not be closed under Order XVII, Rule 3, CPC unless the case was adjourned on the previous date at the request of the Appellant/Plaintiff. Similarly, he pointed out that none was present on behalf of the Appellant/Plaintiff on 6-4-2015 therefore the Trial Court could not have passed the Impugned Order and Decree under Order XVII, Rule 3, CPC and that, at the most, the Trial Court could have proceeded under Order XVII, Rule 2, CPC whereby the suit may be disposed of in one of the modes directed in that behalf by Order IX, CPC and as such the Suit of the Appellant/Plaintiff could have been dismissed under Order IX, Rule 8, CPC. The learned counsel for the Appellant explained that such course of action was not only the correct mode to be adopted under the circumstances as per law but would have also given the Appellant/Plaintiff the right to seek restoration under Order IX, Rule 9, CPC. He argued that even otherwise the Appellant/Plaintiff's Suit has been dismissed vide the Impugned Order and Decree without passing of judgment whereas even if Order XVII, Rule 3, CPC is invoked a judgment is to be passed on merits. He relied upon Sheikh Khurshid Mehboob Alam Vs. Mirza Hashim Baig and another, 2012 SCMR 361 and Muhammad Jamil and others Vs. Mst. Inayat Begum, 2012 YLR 2658. 5. On the other hand, the learned counsel for the Respondent/Defendant pointed out that the Appellant/Plaintiff had been given more than 20 opportunities to produce evidence and fine was imposed twice as such the Impugned Order and Decree according to him does not suffer from any illegality. 6. I have heard the arguments of the learned counsels and perused the record with their able assistance. 7. The essential point for determination involved in the instant appeal is whether it is Rule 2 or Rule 3 of Order XVII, CPC that is to be invoked by the Trial Court where the plaintiff not only fails to produce evidence or to cause the attendance of his witness or to perform any other act necessary for the further progress of the suit for which time has been allowed but also fails to appear on the day to which the hearing of the suit is adjourned. 8. To this end, I have examined the record minutely which shows that issues were framed on 15-1- 2013. Thereafter, the matter was fixed on 13-2- 2013, 20-3-2013, and 22-5-2013 when the Appellant/Plaintiff's representative/counsel was present but not the evidence and as such the matter was adjourned for the production of the Appellant/Plaintiff's evidence. It bears emphasis that on 22-5-2013 last chance was given for production of evidence. Similarly, on 26-6-2013 the counsel of Appellant/Plaintiff was not present as such the matter was adjourned for production of evidence at the request of the Appellant/Plaintiff's representative and cost of Rs. 500/- was also imposed upon the Appellant/Plaintiff. Yet on 10-12-2013 none was present for the Appellant/Plaintiff and the matter was adjourned for the last time once again in the interest of justice. On 22-1-2014 the matter was adjourned once again at the request of the Appellant/Plaintiff's representative for the Appellant/Plaintiff's evidence. Thereafter, on 19-02-2014 counsels for both the parties were present but the matter was adjourned as requested, however, the order does not specify as to
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whose request. On 3-9-2014 matter was adjourned at the request of the Appellant/Plaintiff's counsel for the production of the Appellant/Plaintiff's evidence for the last time. On 17-4-2013, 14-10- 2013, 26-3-2014, and 17-12-2014 matter was adjourned due to strike or because the presiding officer was not available. Whereas, on 10-5-2014, 19-6-2014, 15-10-2014, 19-11-2014, 20-1-2015, and 24-2- 2015 principal counsel for neither party was present. The orders do not specify at whose request the matter was adjourned. Be that as it may, matter was adjourned and last chance was given on each of those dates (except 15-10-2014 and 19-11-2014) for production of evidence and cross- examination. Moreover, the order dated 19-11-2014 also records that the matter is fixed for payment of costs of Rs. 500/- and a notice under Order XVII, Rule 3, CPC was also issued on the last two dates of hearing. Finally on 6-4-2015 the Impugned Order and Decree was passed. 9. Nonetheless, the Appellant has argued that the essential pre conditions for the invocation of Rule 3 were not satisfied on 6-4-2015 and at best the Trial Court could have applied Rule 2 of Order XVII, CPC. Let us see what the essential conditions are. Necessary conditions for invoking Order XVII, Rule 3, CPC 10. According to the scheme of law Order IX, CPC provides the consequences of non-appearance of the parties on the first date of hearing[1] whereas Order XVII, CPC is attracted to adjourn dates of hearing[2]. Rule 1 thereof allows the Court to grant adjournment and also empowers the Court to impose costs as occasioned by the adjournment, as it thinks fit. However, adjournments cannot be demanded as a matter of right[3]. The Court may grant time and adjourn the matter if sufficient cause is shown[4]. While some adjournments are the consequences of force majeure, most are not[5]. To cater to the latter, Rule 1 is followed by Rules 2 and 3 which provide the Courts with a course of action to check misuse and abuse[6]. Since these rules are germane to the discussion at hand, the same are reproduced hereunder for ease of reference: Order XVII 1... 2. Procedure if parties fail to appear on day fixed. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. 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 witness, 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." [Emphasis added]. 11. The application of Order XVII, Rules 2 and 3, C.P.C. has been the topic of much judicial debate. As a result, judicial consensus has been achieved to the extent that the following conditions are considered necessary for the application of Rule 3: (i) time must have been granted to the party at his instance; (ii) the time must have been granted to the party to do one of the three things mentioned in the rule viz to produce evidence or to cause attendance of witnesses or to perform any other act necessary for the progress of the suit; (iii) default must have been committed by the party in doing the act for which the time and adjournment had been granted to it; and (iv) the Court must decide the suit forthwith which means a decision within a reasonable time under the circumstances. 12. Insofar as the Appellant's argument is concerned that the last order preceding the Impugned Order does not specify that the adjournment was granted at the Appellant/Plaintiff's instance, reference may be made to Rana Tanveer Khan Vs. Naseer-ud-Din, 2015 SCMR 1401 whereby it
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was held that once the case is fixed by the Court for recording the evidence of the party, the party has the obligation to adduce evidence without there being any fresh direction by the Court. However, where the party makes a request for adjourning the matter to a further date(s) for the purpose of adducing evidence and it fails to do so for such dates(s) the provision of Order XVII, Rule 3 can be attracted especially in the circumstances when adequate opportunities at the request of the party have been availed and caution is also issued on one of such date(s) as being the last opportunity(ies). 13. In the instant case, the order sheets reveal unambiguously that the matter was fixed by the learned Trial Court for production of the Appellant/Plaintiff's evidence for the first time on 13-2-2013. Therefore, the Appellant/Plaintiff was obligated to adduce evidence without there being any fresh direction by the Court, which the Appellant/Plaintiff failed to do. The matter was adjourned expressly at the request of the Appellant/Plaintiff on at least three dates between 13-2-2013 and 3- 9-2014 and on five occasions during such period last chance was given for production of evidence of the Appellant/Plaintiff and cross-examination whereas on one occasion cost was imposed upon the Appellant/Plaintiff. In such background, the fact that the last four orders between 3-9-2014 and when the Impugned Order was passed do not expressly state at whose request the matter was being adjourned is inconsequential. It is evident that the matter was expressly adjourned at the request of the Appellant/Plaintiff's counsel for the production of the Appellant/Plaintiff's evidence for the last time on 3-9-2014 despite which no witness of the Appellant/Plaintiff was present on the following dates and last chance was given on 20-1-2014 and 24-02-2014 for production of evidence and cross-examination yet again, which is sufficient to conclude that it continued to be a case of request by the Appellant/Plaintiff[7]. 14. Moreover, the Appellant/Plaintiff has not expressly denied in the memo of appeal that it was not the Appellant/Plaintiff who made such request on those dates. Therefore, the argument raised by the counsel on its behalf that such orders do not record at whose request the matter was adjourned appears to be disingenuous. Thus, the first necessary condition for the application of Rule 3 of Order XVII, CPC stood satisfied, whereas there is no dispute that time was granted for the purpose as stipulated in Order XVII, Rule 3, CPC. 15. While the Appellant/Plaintiff claimed in the memo of appeal that on most occasions the evidence of the Appellant/Plaintiff was present but could not be recorded due to the absence of the learned counsel of the Respondent/Defendant or strike of advocates, the Appellant/Plaintiff could not establish the same from the record. None of the order sheets of the dates on which the counsel for the Respondent/Defendant was absent or advocates were on strike record the presence of the Appellant/Plaintiff's evidence. In fact, the only date on which the Appellant/Plaintiff's evidence was present was 22-01 2014 when the advocate of the Appellant/Plaintiff was busy before this Court and as such the case was adjourned at the request of the representative of the Appellant/Plaintiff. Therefore, it is abundantly clear that the Appellant/Plaintiff failed to produce its evidence for which purpose time was granted and the matter was adjourned by the learned Trial Court at the request of the Appellant/Plaintiff. Presence of parties 16. The learned counsel for the Appellant/Plaintiff argued (a) that notice under Order XVII, Rule 3, CPC cannot be issued in the absence of the party concerned whereas none was present on behalf of the Appellant/Plaintiff on 20-1-2015 when notice under Order XVII, Rule 3, CPC was issued; and (b) that the course of action as specified in Order XVII, Rule 3, CPC can only be adopted in the presence of the parties. 17. Insofar as the presence of parties at the time of issuance of notice under Order XVII, Rule 3, CPC is concerned, reference may be made to Moon Enterprises CNG Station, Rawalpindi Vs. Sui Northern Gas Pipeline Limited, 2020 SCMR 300 wherein the Supreme Court specified the
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conditions for the application of Order XVII, Rule 3, CPC. The conditions so stated do not include a specific notice under Order XVII, Rule 3, CPC rather one of the necessary conditions so specified is to issue a specific warning while granting time at the request of a party to adduce evidence that the opportunity being granted is the last and that failure to produce evidence will lead to closure of the right to produce evidence. As noted hereinabove, the Supreme Court in Rana Tanveer Khan (Supra) held that caution issued on one of the date(s) on which adjournment has been granted at the request of the party as being the last opportunity is sufficient to attract Order XVII, Rule 3, CPC. 18. The order sheets show that such warning had been given to the Appellant/Plaintiff on at least two occasions in the presence of the counsel. Moreover, proxy counsel was present on 24-2-2015 when notice, specifically under Order XVII, Rule 3, CPC, was given for the second time. Therefore, Order XVII, Rule 3, CPC was fully attracted in the instant case. 19. Before we consider whether presence of the parties was necessary to adopt the course of action as specified in Order XVII, Rule 3, CPC on the date the Impugned Order and Decree was passed, let us first determine whether the finding of the trial court that none was present on behalf of the Appellant/Plaintiff on such date was correct or not. 20. It may be noted that the Impugned Order records the attendance of the proxy counsel for the Appellant/Plaintiff and of the counsel for the Respondent/Defendant. Yet the learned Trial Court recorded in the Impugned Order that "no one turned up on behalf of the plaintiff". 21. A Full Bench in Rama Rao Vs. Shantibai, AIR 1977 Madhya Pradesh 222 expounded on the meaning of appearance of a party as follows: "22. The other main question for our decision is about the meaning of appearance of a party at a hearing in the Court. There can be no doubt that the mere conscious presence of the party himself in the Court for participation therein when the case is called out, whether the party thereafter actively participates at the hearing or not, does amount to appearance of that party at that hearing. In the case of personal presence of the party, it constitutes appearance even when he abstains from appearing after refusal of an adjournment, Thus, in the case of presence of the party which constitutes appearance, even his further withdrawal has no effect and R. 3 is attracted. The difficulty sometimes arises when the party is himself absent and the appearance is through his counsel. In such a situation, the question has to be answered with reference to the extent of the authority of the counsel and his conduct at the commencement of the hearing when the case is called. The real test is whether the counsel has done any act at that hearing of the suit or was his presence merely to inform the Court that he was not duly instructed to appear at the hearing on account of which there is no appearance of the party through him on that date. In such a situation, it would be a question of fact in each case to be answered with reference to the extent of authority of the counsel and the indication of the same given by him to the Court at or before commencement of the hearing when the case is called. It is equally clear that once the counsel has commenced participating at the hearing without indicating that he was not duly instructed to represent the party at that hearing except to seek an adjournment, his subsequent withdrawal when the hearing has commenced will not amount to non-appearance of the party through him. In Bhivraj v. Janardhan (AIR 1933 Nag 370) (supra) Niyogi, A. J. C. held as follows: -- "It is urged that a pleader was present in Court on behalf of the defendant. There is nothing in the order sheet to show that he had received instructions to account for the default committed by his client. His mere physical presence under the circumstances cannot be regarded as equivalent to the presence of the party." (Underlining by us). According to this view, unless the counsel is duly instructed for appearance on that date, his mere physical presence cannot be treated as the presence of the party. Obviously, the mere appearance of the pleader to inform the Court that he was not duly instructed by his client is an
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act of courtesy rightly extended to the Court and should not jeopardise the interest of the party merely because of this courtesy shown by his counsel to the Court. The Division Bench in Motilal Joshi v. Mohd. Shafi, (AIR 1956 Nag 179) supra, affirmed this view and held that when a counsel appeared only to request for an adjournment and on its refusal reported 'no instructions', there was no appearance of the party whom the counsel represented. The conclusion was reached after a review of the authorities on the point till then and the test applied was whether the counsel had acted in any manner for his client at that hearing before reporting 'no instructions'. It was thought that a mere request for adjournment was by itself not an act of participation at the hearing to make it an appearance on behalf of that party. In our opinion, the test applied as well as the conclusion reached was, correct. A request for an adjournment made prior to the commencement of hearing cannot amount to an act of participation at the hearing since such a request prior to the commencement of the hearing is obviously no part of the hearing and is merely a request not to commence the hearing on that date. The position, however, would be different if the request for adjournment is made by the counsel after he has done some act which amounts to his participation at the hearing. An act done to constitute appearance at the hearing cannot be nullified nor the appearance resulting therefrom wiped out by a subsequent withdrawal during that hearing. It would be unsafe to attempt any exhaustive list dealing with all such situations since it would be a question of fact in each case to be answered by application of the test whether, the counsel was duly instructed to appear at the hearing or his presence was merely to inform the Court that he was not appearing at the hearing to represent his client and that no act of participation at the hearing was done by him to constitute appearance of the party. ... In our opinion, the conclusion of the Division Bench in Motilal's case, supra, is the correct view on this point. We find that substantially the same view is taken in Soonderlal v. Goorprasad, (1899) ILR 23 Bom 414, Satish Chandra Mukherjee v. Ahara Prasad Mukerjee (1907) ILR 34 Cal 403 and Basalingappa v. Shidramappa, AIR 1943 Bom 321 (FB). Thus, the meaning of the word "appearance" for the purpose of attracting R. 2 of O. 17 has to be understood in this manner. The other main question stated at the outset is answered by us in this manner."[Emphasis added]. 22. In Vinod Khanna Vs. Bakshi Sachdev, AIR 1996 Delhi 32 the Delhi High Court also held that in its view there is no appearance on behalf of a party merely because a pleader who has instructions only to apply for adjournment and not to conduct the suit applies for adjournment on his behalf. Similarly, the Sindh High Court at Karachi held in Abdul Shakoor Vs. Abdul Rasool, PLD 1963 Karachi 356 that there would be a default in appearance where the pleader withdraws for want of instructions. 23. Applying the said principles to the case at hand, in my opinion, the learned Trial Court rightly concluded that no one turned up on behalf of the Appellant/Plaintiff, notwithstanding the presence of the proxy counsel who had no instructions other than to request for adjournment, which adjournment was refused. 24. This brings the discussion to the most crucial argument made on behalf of the Appellant/Plaintiff that the course of action as specified in Order XVII, Rule 3, CPC can only be adopted in the presence of the parties. However, there appears to be some conflict of opinion in the judgments with regard to whether the presence of the party is necessary in order to adopt the course of action specified in Rule 3 of Order XVII, C.P.C when all other conditions stand satisfied. 25. In a fairly recent judgment reported as Lutfullah Virk Vs. Muhammad Aslam Sheikh, PLD 2024 SC 887 the Supreme Court refused to grant leave to appeal where the trial court closed the right of the defendant to conduct cross-examination, as the defendant marked his presence on the cause list for the day but did not appear at the time fixed for the examination-in-chief of the plaintiff. The Supreme Court noted that the trial court recorded the examination-in-chief of the plaintiff's witnesses and waited till 1 p.m. for the counsel of the defendant to conduct cross-examination, who
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did not turn up and therefore, the trial court closed the right of defendant to conduct cross- examination as two adjournments had already been entertained by the trial court. In these circumstances, the Supreme Court held that the options available to the trial court were as per Rules 2 and 3 of Order XVII, CPC. The Supreme Court further observed that since the court did not dispose of the suit as per the first part of Rule 2 it could only make such order as it thought fit which was to close the defendant's right to cross-examine the plaintiff's witnesses and that such order also enjoys the protection of Rule 3 of Order XVII, CPC. Thus, the Supreme Court concluded that the trial court rightly exercised the options available to it under Rule 2 and 3 of Order XVII, C.P.C. by closing the defendant's right to cross-examine the plaintiff's witnesses. The Supreme Court also considered the following hypothetical: "15. There is another aspect of the matter, which warrants our indulgence. Suppose that the present Petitioner, who as the record shows marked his presence in the cause-list on 14.07.2005, had appeared before the Court and requested an adjournment and the said adjournment had been denied and the present Petitioner had refused to participate in the proceedings of the day, that is the Examination-in-Chief. This would again lead to the Court having the options available to it under Rules 2 and 3 of Order XVII of C.P.C., as a party is said to have failed to appear even if he is present in the Court and applies for adjournment, but his application is refused and he does not thereafter participate in the…
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