1980 PLP 595 (CLC)

O. XVII, r. 3-Words and phrases-"Judgment"-Decision determining right to relief claimed by any party and not merely regulating procedure- and not merely a technical step towards obtaining final adjudication-Held, amounts to "judgment" under Code of Civil Procedure, 1908.-[Judgment]. Industrial Sales and Service, Karachi v. Archifar Opal Laboratories Ltd., Karachi P L D 1969 Kar. 418 rel, (d) Civil Procedure Code (V of 1908)-- O. XVII, rr. 1(3) & 3-No material to look into existing-Court, held, has no jurisdiction to decide suit under 'r. 3-Court in such case to "proceed with the suit" forthwith under r. 1(3) and not to "proceed to decide the suit forthwith" under r. 3.-[Practice and procedure]. Mst. Zaitoon Begum and-others v. Muhammad. Ilyas and others P L D 1971 Lah. 143 ref. Perwaiz Akhtar for Petitioners. M. R. Chughtai for Respondents. Date of hearing : 11th June 1979. This is a revision petition against the order of the Civil Judge, Khanewal, dated 2-12-1975 whereby he decided the suit against the petitioners after closing their evidence under rule 3 of Order XVII, C. P. C.

2. During the two connected suits, one for specific performance of a contract of sale and the other for permanent injunction 'for protection of their possession, the plaintiff's-petitioners were required by the Court to produce evidence on 29-9-1975 but they failed to do so. They asked for an adjournment which was granted on payment of Rs. 50 as costs. On the adjourned date of hearing the petitioners again failed to bring their evidence, and the trial Court elected to close their evidence and decide both the suits forthwith under rule 3 of Order XVII, C. P. C. by a single judgment. Hence this revision petition.

3. Reliance was placed on Abdul Shakoor v. Abdul Rasool (1) and it was contended by' the learned counsel for the petitioner that the Court could not proceed to decide the suits unless there was some material on record. It was observed in that case that for applying the procedure laid down in rule 3 to a case, there must be the presence of both the elements namely, (P L D 1963 Kar. 356) the adjournment must have been at the instance of a party and (2) there must be material on record for the Court to proceed to decide the suit. It was however held that where there were no materials on the record the proper procedure to be followed would be that laid down in rule 2. 3-A. Rule 2 of Order XVII is applicable upon the failure of a party to appear on an adjourned date of hearing but it will not be attracted where the parties appear but make a default - n respect of any act. It was not the position in the instant case that the petitioners were absent on the date of hearing in addition to their failure to produce evidence. The petitioners whose evidence was closed by the trial Court were represented by a counsel and he was present in Court and had asked for more time. In the circumstances the provisions of rule 2 were not in any way attracted in the instant case. Rule 3 of Order XVII, C. P. C. provides that 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. The rule applies only to cases where any party to whom adjournment was granted on his own request for taking certain steps to bring the suit to trial, e.g. to produce witnesses or to do certain specified acts, fails to do them. If the Court in its discretion considers any further adjournment undeserving, it may under this rule proceed to decide the suit "forthwith". . But may be pointed out that a decision passed "forthwith" under this rule 9, one on the merits as gathered from available .facts. It is indicated in Muhammad Haleem and others v. H. Muhammad Naim and others (P L D 1969 S C 270) that the consensus of judicial opinion appears to be in favour of the view. that ii it is possible for a Court to base a decision on merits upon the materials already brought on record, it should proceed under rule 3 of Order XVII and not rule

2. This appears to be sound on principle. Every party who has instituted a cause or matter in a Court has a right to have his case decided on merits.

4. The Court can evidently proceed to decide the suit on merits, because the "decision" according to Industrial Sales and Service, Karachi v. Archifar Opal Laboratories Ltd., Karachi (P L D 1969 Kar.418) amounts to a "judgment" under the Code of Civil Procedure if it determines, as in the instant case, the' right to any relief claimed by any party to the proceeding and does not merely regulate a procedure and is not merely a technical step towards obtaining final adjudication. It is laid down that rule 3 is in its nature a penal provision and it can be pressed into service for deciding the suit finally on merits, on proof of default by some party. One of the conditions to 4e satisfied before passing the order under that provision is that there should be some material to decide the suit. It means that as long as there is no material to look into, the Court has no jurisdiction to decide the suit under rule

3. In such a case, as directed in Mst. Zaitoon Begum and others v. Muhammad Ilyas and others (P L D 1971 Lah. 143) the Court should have "proceeded with the suit forthwith" under rule 1(3) and not "proceeded to decide the suit forthwith" under rule

3. In view of what - has been said, the trial Court, while proceeding to decide the suit forthwith without any material before it, has acted in its jurisdiction illegally and with material irregularity.

5. For the reasons given above the revision is allowed, the impugned order is set aside and the case is remanded to the trial Court to proceed with the suits accordingly. The parties. are however left to bear their own costs. K. M. A. Revision allowed.