1999 PLP 105 (SCMR)

IRSHAD HASAN KHAN, J.

This appeal, with the leave of the Court, is directed against the judgment and decree dated 22-12-1993, passed by the Lahore High Court in R.S.A. No.674 of 1992.

2. Brief facts of the case are that on 24/27-5-1995, Mehra predecessor-in -interest of Arnir Muhammad and others respondents, filed suit for possession by pre-emption on the basis of being a co-sharer in Khata and in estate, against Zahoor Ahmad appellant in the Court of Civil Judge, Bhakkar. The suit was dismissed on 24-9-1965 on the ground that the transaction was not pre-emptible. The appeal of the plaintiff was dismissed by the District Judge, Mianwali on 22-6-1966. Feeling aggrieved thereby, the plaintiff filed Regular Second Appeal in the Lahore High Court, Lahore which was accepted on 10-2-1972 and the case remanded for fresh decision. After remand, three issues were framed by the Civil Judge. The plaintiff tendered copies of Jamandandis Exhs. P- I and P-2 and copy of mutation Exh. P-3 and closed his evidence. The case was then adjourned to 17-1-1972 for appellant's/defendant's evidence who failed to produce evidence on 17-1-1972 and on his request the case was adjourned to 4-3-1972 subject to the payment of Rs.30. The defendant/appellant again failed to produce his evidence on 4-3-1972 whereupon his evidence was closed under Order XVII, Rule 3, C.P.C. and the suit was decreed subject to the payment of Rs.1,

456. The appeal filed by the appellant/defendant was dismissed by the district Judge on 17-7-1972. Feeling aggrieved thereby, he filed Regular Second Appeal in the Lahore High Court, Lahore which too was dismissed vide impugned order.

3. Leave to appeal was granted to consider whether the learned Civil Judge was justified in closing the evidence of the appellant/defendant on 4-3-1972.

4. We have heard the learned counsel for the parties and perused the material on record. We find that the Trial court had acted illegally and/or with material irregularity in not giving sufficient time to the appellant/defendant to produce his evidence in the facts and circumstances of the present case. The order passed by the Trial Court in the purported exercise of its power under rule 3, Order XVII, C.P.C. was not conformity with the well-accepted principles laid down by the Superior Courts. The Trial Court should have adjourned the case to ascertain the market value of the suit land. The learned Judge in Chambers was also wrong in holding that the appellant was employing delaying tactics. In such matters, the law favours the decision on merits rather than on technicalities unless the party concerned is guilty of gross negligence, within the contemplation of rule 3, Order XVII, C. P.C.

5. In view of the above, the appeal is allowed. The impugned judgments of the Courts below are set aside and the case is remitted to the Trial Court for recording evidence of the appellant/defendant to ascertain the market value of the suit land and that of the respondent/plaintiff, in rebuttal thereof, on 13-5-1998. The resolution of the other issues by the Trial Court is upheld. The parties shall bring their witnesses along, without any process of the Court, on the said date. The Trial Court shall finalize the matter within a week of 13-5-1998, under intimation to the Additional Registrar of this Court. There shall be no order as to costs. A.A./Z-17/S Case remanded