2004 PLP 1204 (MLD)

For the order, I propose to pass in this civil revision, I will not be referring to pleaded facts. In a suit filed by the petitioner against the respondent for possession of suit‑land by pre‑emption, the learned trial Court framed issues on 19‑4‑2002. The case was adjourned to 13‑5‑2002 for recording evidence of the petitioner. On this date, it was noted that no one is present for the petitioner, the case was adjourned to 8‑6‑2002. On this date, it was stated on behalf of the petitioner that some compromise is being effected. The case was adjourned to 29‑6‑2002. On this date, the evidence was not present and the petitioner was given a last opportunity for 12‑7‑2002. On this date, again evidence was absent and the petitioner was given a last opportunity subject to payment of Rs.200 as costs. On 18‑7‑2002 it was noted that the learned counsel for the respondent is not present and the complete evidence of the petitioner is also not present. The case was adjourned to. 13‑9‑2002. On this date, again the evidence was absent and the case was adjourned to 19‑9‑2002 by way of last opportunity. On 19‑9‑2002 the case was adjourned as the learned counsel for the respondent was absent. The case was then taken up on 8‑10‑2002 and this time again the evidence was absent and the case was adjourned to 15‑10‑2002. On this date, none appeared for the petitioner whereas on one occasion the learned counsel for the respondent appeared and on another the Clerk of the learned counsel for the respondent appeared. The learned trial Court after finding that no one is present for the plaintiff proceeded to close the evidence under Order, XVII, rule 3, C.P.C. and further by holding that the petitioner has failed to prove his case, dismissed the suit. The learned District Judge, Attock, followed suit vide judgment and decree dated, 16‑12‑2002 .

2. Learned counsel for the petitioner contends that since none was present on behalf of the petitioner on 15‑10‑2002, the learned trial Court acted without jurisdiction while closing the evidence under Order XVII, rule 3, C.P.C. According to the learned counsel the absence was caused because of misunderstanding of date which was noted as 17‑10‑2002 instead of 15‑10‑2002. Learned counsel for the respondent, on the other hand, cites the cases of Ahmad Bakhsh v. Province of Punjab through Collector, Bahawalpur (2001 MLD 782) and Wahid Bakhsh v. Mst. Mubarik and others (NLR 1982 CLJ 194) to urge that the evidence was correctly closed and the revision is not competent. Ms. Zahida Ameen rejoins to state that the judgment of the Hon'ble Supreme Court of Pakistan in the case of Muhammad Haleem and others v. H.H. Muhammad Naim and others (PLD 1969 SC 270) was not before this Court in the said case of Wahid Bakhsh.

3. I have gone through the copies of the records. I have already reproduced above the entire history of the case. No doubt the petitioner was given several opportunities and he failed to produce evidence. However, it is equally true that on the fateful day i.e. 15‑10‑2002 none appeared for the petitioner. The case, therefore, fell within the ambit of Order XVII, rule 2, C.P.C. read with Order IX; rule 8, C.P.C. and if ate all the learned trial Court could have dismissed the suit for non- prosecution. The learned counsel for the petitioner is justified in arguing that the impugned orders and decrees are without lawful authority as the provisions of Order XVII, rule 3, C.P.C. could not be invoked in the present case. The Hon'ble Supreme Court of Pakistan in the said judgment in the case of Muhammad Haleem and others has laid down the distinctive‑ features of Order XVII, rule 2 and Order XVII, rule 3, C.P.C. The petitioner, however, must compensate the respondent for the absence on 15‑10‑2002. This civil revision is accordingly allowed and both the impugned judgments and decrees are set aside. The result would be that the suit filed by the petitioner shall be deemed to be pending before the learned Senior Civil Judge, Attock, where the parties shall appear do 26‑9‑2004. The petitioner shall pay a sum of Rs.1,000 by way of costs to the learned counsel for the respondent on the said date and thereafter one opportunity shall be granted by the learned trial Court to the petitioner for producing all his evidence. In case of failure to produce the evidence on the said date without any just or sufficient cause the learned trial Court shall be at liberty to invoke the provisions of Order XVII, rule 3, C.P.C. No orders as to costs in this revision.

4. A copy of this order be immediately remitted to the learned Senior Civil Judge, Attock. M.H./M‑254/L Case remanded.