1994 PLP 690 (CLC)

(1) Whether the Court has no pecuniary jurisdiction to try the suit as the market price of the subject‑matter of the suit is more than Rs.5,00,000? (2) Whether the plaintiffs are owners of the suit property? (3) Whether the suit is .barred by time as the defendant has been in open and hostile possession of the land in dispute for over 40 years? (4) Whether the plaintiffs are the transferees of the land in suit, if so, what is their title? (5) Are the plaintiffs entitled to possession and mesne profit? (6) What should the decree be? The matter was then adjourned for evidence of the plaintiffs. The plaintiffs have also submitted a list of witnesses on 1‑7‑1987. No application for summoning the witnesses was made nor any costs paid for the same. The matter was then being adjourned from time to time on the applications of the Advocate for the applicants/plaintiffs and ultimately on 16‑11‑1987 his Advocate moved an application for seeking amendment of issues Nos.l and

3. The amendment sought shows that only the wording of these issues was to be changed although materially, the issues were to be same. Notice of this application was ordered, counter‑affidavit was filed by respondent No.l and thereafter as many as six hearings were consumed in deciding this application. The amended issues were, however, framed on 2‑7‑1988 and the matter 'was adjourned to 4‑8‑1988 on which date the suit was again adjourned by consent while on the next two dates the Presiding Officer was on leave. The suit came up for hearing on 3‑11‑1988 and then on 6‑12‑1988. On both these dates the matter was adjourned on the written application by the counsel for the applicants/plaintiffs. On 6‑12‑1988 the trial Court had allowed the adjournment subject to payment of cost of Rs.100. The matter again came‑up for hearing on 9‑1‑1983 on which date again an application for adjournment was moved by the plaintiff's Advocate on the ground that the plaintiffs was busy in High Court. However, no costs were paid. The trial Court in view of the above facts rejected this application by the order passed on the reverse of the application and then proceeded to record the judgment. Being aggrieved the present appellant and respondent No.2 who were plaintiffs in the suit preferred an appeal before the District Judge (East) Karachi being C.A. No32 of 1989. This appeal was also dismissed. Hence this Revision Application. I have heard the learned counsel for the parties. The learned counsel for the applicant has submitted that this suit has been dismissed on account of absence of the plaintiffs, and therefore, the trial Court should not have dismissed the suit under Order XVII, Rule 3, C.P.C. but a recourse should have been made to Order XVII, Rule 2, C.P.C. He has submitted that the trial Court has exercised the jurisdiction vested in it with material irregularity. The learned counsel has further submitted that in such eventuality it was incumbent upon the trial Court to have given findings on merits and that mere observation that suit was dismissed under Order XVII, Rule 3, C.P.C. would by itself not amount to such dismissal. He has further contended that the judgment of the trial Court shows that no merits of the case have been considered. He has placed reliance on a number of cases of the superior Courts. There is no cavil about the above preposition of law. Of course, under Order XVII; Rule

3. C.P.C. the Court when proceeds to decide the case forthwith it should consider A the merits of the case as available on the record which may comprise of any evidence recorded till then or documents placed on record and also the pleadings of the parties. In the case of Hamid v. Mst. Latifa and others (1991 MLD 1442) it was observed that requirements of Order XVII; Rule 3, C.P.C. are that the Court while proceeding under the said provisions should give decision on merits and should not dismiss the suit merely on account of fact that the plaintiff had not entered in the witness‑box or produced his witnesses. In this case there was sufficient material on the record in the form of admission of parties in the pleadings as well as the documents placed on record and the trial Court had not considered the same while dismissing the suit. The learned counsel for the applicants has then referred to the case of Abdul Shakoor v. Abdul Rasool (PLD 1963 Kar. 356) wherein a learned Single Judge of this Court has considered the scope of the application of the provisions of Order XVII, Rules 2 and 3, C.P.C. However, the facts in that case are not applicable to the present case as in that case an adjournment was granted on the application of the Advocate for the plaintiffs and when on the next date the case came‑up on that date the defendant and his Advocate were called absent and the Judge proceeded to pass a detailed judgment. The learned counsel has then relied on two cases from Lahore High Court wherein their Lordships had observed that in such circumstances the trial Court should proceed under rule 1 (3) of Order XVII and hot under Rule

3. It may be observed that sub‑rule (3) was added in Civil Procedure Code in Lahore through a local amendment and no such provision is applicable to the Province of Sindh. Repelling the above submissions of the learned counsel Mr.G.H. Abbassi, for the respondent has submitted that there is an exception to the rule laid down in the case of Hamid v. Mst. Latifa and others. He has submitted that it is not in every case that Court should resort to the provision of rule 2 of Order XVII where the plaintiff fails to enter the witness‑box but the conduct of the party as well as the circumstances of the case are to be seen. He has submitted that the conduct of the plaintiff in the present case shows that suit was filed in the year 1981 while the issues were framed on 24‑5‑1987 whereafter the plaintiff has been seeking adjournments and then in order to further protract the proceedings he moved an application for amendment of issues whereby only the wording of the issues were sought to be changed although material effect was the same. Again, after amended issues were framed the applicants avoided to attend the Court and sought adjournment. The learned counsel has then submitted that, therefore, the trial Court has exercised the jurisdiction vested in it by proceeding to record the judgment under Order XVII, Rule 3, C.P.C. He has placed reliance on a case of N.S.Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras (PLD 1949 PC 26) and has argued that . no material irregularity has been committed by the lower Courts to warrant inference by this Court. I have perused the record of the two Courts below. The above facts are very much borne out from the record. It may also further be observed that the plaintiffs, even prior to settlement of issues had submitted a list of witnesses which shows the names of the two official witnesses but no effort on his part was made throughout to summon these witnesses through the Court as obviously the said witnesses being Government officials would not attend the Court on. their personal instance. This fact and the subsequently conduct of the applicants itself would show that he had been avoiding to proceed with the case and had intended to cause harassment only. It may also be observed that in the case of Hamid v. Mst. Latifa and others, it was observed that the Court, while proceeding with the case under Order 17, Rule 3 should give finding on merits but in the same case reliance was also placed on a D.B. Judgment of Quetta Bench in the case of Wadera Dalel Khan and seven others v. Province of West Pakistan (PLD 1970 Quetta 79) wherein their Lordships have been pleased to observe:‑‑ "it is desirable that litigants should get decision on merits in their cause. If the plaintiffs fail to comply with the order of the Court repeatedly then an action can be, taken against them under the relevant provisions of law. We should make it clear that extreme measures should only be taken if the Court comes to the conclusion that the plaintiffs by their conduct had made it impossible for the Court to proceed with the trial of the suit and the continuation of the proceedings was only intended to cause harassment to the defendants." In view of the above discussion the present case would come under the exception to the Rule as observed in the above case of Hamid v. Mst. Latifa and others. There is another aspect also which would disentitle the present applicant from any leniency to be shown to him in that he has not complied with the orders of the trial Court whereby costs of adjournment were imposed on him. In view of the above matter, I find no reasons to interfere with the judgment of the two Courts below. This Revision Application is accordingly dismissed with no order as to costs. AA./N‑498/x. Revision dismissed