2016 PLP 1390 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Succinctly the facts of the case are that Mohammad Rafique, respondent instituted a suit for specific performance of agreement to sell dated 2.5.2000 against the petitioner before the learned trial court with the assertion that the respondent had entered into the said agreement to sell with the petitioner, but subsequently, he refused to honour the same. The learned trial court after initiating ex parte proceedings against the petitioner, decreed the suit through ex parte judgment and decree dated 25.6.2005, which was assailed by the petitioner by filing an application under Order IX, Rule 13 of the Code of Civil Procedure, 1908 with the averments that neither any transaction of sale was settled between the parties nor the alleged agreement to sell was executed by him; that no summonses were served upon him and that the proceedings of the suit were never brought into his knowledge. The said application was contested by the respondent/decree holder and while facing with the contest issues were framed, but the petitioner failed to adduce his evidence, whereupon, the learned trial court while invoking the provisions of Order XVII, Rule 3 of the Code of Civil Procedure, 1908, dismissed the application of the petitioner for want of evidence vide order dated 30.9.2009. The said order was maintained when appeal filed by the petitioner was also dismissed by the learned lower appellate court vide judgment dated 14.4.2010. By filing the instant civil revision, the propriety and legality of the order and judgment passed by the learned two courts below has been assailed.

2. The case diary maintained by this court reveals that the respondent/decree holder was duly served through notice issued by this court, but he did not turn up and was proceeded against ex-parte by this Court vide order dated 19.2.2015.

3. Arguments of learned counsel for the petitioner heard. Record perused.

4. The perusal of interlocutory orders passed by the learned trial court while proceeding with the application under Order IX, Rule 13 of the Code of Civil Procedure, 1908 filed by the petitioner reveals that the said court framed the issues on 20.6.2006 and the petitioner was invited to lead his evidence. No doubt, the petitioner was afforded numerous opportunities, but he failed to produce evidence. It is vivid from the perusal of case diary maintained by the learned trial court that on the preceding date of hearing, the respondent/decree holder failed to raise any objection on the adjournment granted by the learned trial court and as per principle settled by the apex Court in the judgment reported as "Syed Tasleem Ahmad Shah v. Sajawal Khan, etc." (1985 SCMR 585) it was held that in case no objection is taken on the preceding date regarding the adjournment of the case, subsequently on the next falling date application of Order XVII, Rule 3 of the Code of Civil Procedure, 1908 could not be invoked. The dicta laid down by the apex Court has left no room to conclude that the learned courts below failed to examine the said ratio while passing the impugned order and judgment. The respondent/decree holder has also not entered appearance to contest the instant civil revision. Even otherwise, the law requires the disposal of cases on merits and not to decide the same on technicalities.

5. Consequently, the instant civil revision is accepted, the impugned orders dated 25.6.2005 and 30.9.2009 passed by the learned trial court as well as judgment dated 14.4.2010 delivered by the learned lower appellate court are hereby set aside and the application filed by the petitioner under Order IX Rule 13 of the Code of Civil Procedure, 1908 will be deemed to be pending before the learned trial court, who will afford only one fair opportunity to the petitioner for production of his entire oral as well as documentary evidence subject to payment of cost of Rs.10,000/-, which shall be paid to the respondent/decree holder. The petitioner is directed to appear before the learned District Judge, Pakpattan on 18.4.2016, who will entrust the lis to a court of competent jurisdiction for further proceedings. The said court after procuring the service of respondent/decree holder will proceed as per law. ZC/R-12/L Revision allowed.