2011 PLP 1234 (YLR)

TARIQ JAVAID, J.

This writ petition is directed against the judgment and decree dated 27-9-2007 passed by the learned District Judge, Narowal whereby order dated 12-3-2007 passed by the learned Senior Civil Judge, Narowal was upheld in revisional jurisdiction.

2. The learned counsel for the petitioner maintains that on 12-3-2007 case was dismissed in default as well as for failure to produce evidence. However, the learned counsel submitted that order was too harsh and in fact the suit was dismissed for non-prosecution. It is further submitted that if the learned trial court dismissed the suit for non-prosecution, the learned trial court was not required to have made observation with regard to non-production of evidence. This observation could only be passed if the petitioner was present and he failed to produce evidence, as such, it is argued that the learned revisional court has failed to take this aspect into consideration before passing of the impugned judgment.

3. On the other hand, learned counsel appearing on behalf of the respondents has vehemently argued that the said orders have been passed under Order XVII, Rule 2 as well as under Order XVII, Rule 3, C.P.C. and trial court was well within its jurisdiction to invoke both of the provisions while dismissing the suit. According to the learned counsel for the respondents no illegality has been committed by the courts below and this writ petition merits to be dismissed. The learned counsel for the respondent further pointed out that the petitioner filed an appeal against order dated 12-3-2007 and subsequently withdrew the same unconditional. According to the learned counsel for the petitioner remedy provided to the petitioner was by way of appeal as an order under Order XVII, Rule 3, C.P.C. is appealable and the impugned order attained finality, thereafter the appeal has been withdrawn. The petitioner could not invoke revisional jurisdiction of the District Judge, hence this petition is also not maintainable.

4. Heard. Record perused.

5. The petitioner had given reasons for his failure to appear in court on 7-3-2007. It was maintained that on the said date of hearing there was heavy rainfall by reason whereof he was prevented from appearing in court and that the President was scheduled to visit Gujranwala and no public transport was available. It was also maintained that as a protest on the said date of hearing there was a complete strike, presumably by the opposition and no transport was available.

6. In this case there were three factors viz heavy rainfalls; visit of the President and complete strike. It is common knowledge that due to heavy rainfall, travel becomes difficult in rural areas and sometimes even the roads get blocked. It is also a relevant fact that whenever the President, more specifically an authoritarian rulers visits a place the District Management, to put up a show, though falsely, that the ruler is popular amongst masses, seizes public transport-for transportation of the masses for reception of the ruler. Thirdly, in case of strike, the scarcity of public transport cannot be ruled out.

7. It may be true that technically speaking arguments advanced by the learned counsel for the respondents are true. However, it is now established principle of law that ends of justice should not be defeated merely on the basis of technicalities. Admittedly, order dated 12-3-2007 had mentioned both the reasons firstly dismissed for non-prosecution and secondly dismissed due to lack of evidence. If the petitioner/plaintiff was present in court and had failed to produce evidence then under Order XVII Rule 3, C.P.C. could be dismissed for non prosecution. But in this case the petitioner absented himself. In the circumstances, where the petitioner/plaintiff himself tails to appear then question whether the witnesses are present in court or not, becomes of little significance. It appears that normal practice before the trial court is to pass ex parte order or to dismiss for non-prosecution and remaining provision of C.P.C. are not required to be applied as for passing an order against the party at fault would suffice. It was sufficient if case was dismissed for non-prosecution; therefore, order with regard to dismissal of the suit for failure to produce evidence was superfluous and in fact not required as it, would have completely defeated the ends of justice. On the other hand, these arguments were equally available while arguing the appeal yet the appeal was withdrawn. However, the petitioner chose to assail the order for dismissal of the suit for non-prosecution by filing revision. In any event this court is vested with powers of revisional jurisdiction which must be exercised to ensure that the ends of justice are met. Order dated 12-3-2007 appears to be too harsh as only three opportunities were afforded to the petitioner to procure _evidence whereas in the trial court it is normal practice that none (sic) opportunities are afforded than the opportunity afforded to the petitioner. Law favours adjudication of the cases on merits and not on mere technicalities; therefore, to my mind, the application of technicalities should not defeat the ends of justice as it is not the intent of law. Reliance has also been placed on PLD 2006 Lahore 121, wherein it was observed in similar circumstances, that the suo motu revisional jurisdiction of the Court is available and must be exercised to ensure that the ends of justice are met. Failure to do so would constitute abdication of the important supervisory function with which the High Court is invested.

8. For the foregoing reasons and following the above said judgment it is deemed appropriate that the impugned orders be set aside and the parties may be allowed at least one opportunity to produce oral evidence and at least one opportunity to produce documentary evidence. Order accordingly. M.U.Y./M-30/L Order accordingly.