P L D 2021 Balochistan 51 (PLP)

ABDUL HAMEED BALOCH, J.

The petitioner/plaintiff assailed order and decree dated 2nd February, 2016 (impugned order and decree) passed by learned Civil Judge, Dalbandin (trial court), whereby the suit of the petitioner/plaintiff was dismissed in non-prosecution and non interest and judgment and decree dated 28th October, 2016 (impugned judgment and decree) passed by learned Additional District Judge, Dalbandin, (appellate court) whereby the appeal filed by the petitioner/plaintiff was also dismissed.

2. Concise facts of the case are that the petitioner/plaintiff filed a suit for declaration, cancellation of sale deed, consequential relief against the respondents/defendants before learned Civil Judge, Noshki with the prayer:

3. The respondents/ defendants filed written statements and controverted the contention of petitioner/plaintiff and prayed for dismissal of the suit.

4. The trial court framed issues. The petitioner/plaintiff produced PW-1 Toota Khan, whereafter, failed to produce further evidence, as such on 2nd February, 2016 the learned trial court dismissed the suit in non-prosecution and non-interest under Order XVII, Rule 3 Civil Procedure Code (C.P.C.). It would be appropriate to reproduce the impugned decree which reads as under: "It is ordered that the suit of plaintiff is dismissed in non-prosecution and non-interest in terms of Order XVII, Rule 3, C.P.C."

5. The petitioner/plaintiff filed appeal before learned Additional District Judge, Dalbandin, who vide judgment and decree dated 28th October, 2016 dismissed the same, hence the petitioner/ plaintiff is before this court.

6. The instant petition was filed in 2016. Despite service neither the petitioner/plaintiff nor his counsel are in attendance. Since the matter is old one, therefore, I have no option but to peruse the record and decide the revision petition on the basis of available record.

7. Perused the record. The record reflects that the learned trial court vide order and decree dated 2" February, 2016 dismissed the suit of the petitioner/plaintiff in non-prosecution and non-interest. It would be relevant to reproduce Order XVII, Rule 3, C.P.C.: "Order XVII, Rule 3, C.P.C., Court may proceed notwithstanding either party fails to produce his evidence, etc.

Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, 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."

8. It appears that there is distinction between Rule 2 and Rule 3 of the Order XVII, C.P.C. In Rule 2 where the suit is adjourned, the parties or any of them fails to appear the court may proceed to dispose of the suit in one of the mode prescribed under Order IX, C.P.C. or make such order as think it fit. While under Rule 3 of Order XVII, C.P.C. when time is granted any party failed to produce his evidence or cause of his attendance or perform any other act which is necessary for further progress of the suit, on default the court would proceed to decide the suit forthwith. The Honorable Supreme Court in case Muhammad Haleem v. H. H. Muhammad Naim PLD 1969 SC 270 held: "

The consensus of judicial opinion appears to be in favour of the view that if it is possible for a court to base a decision on merits upon the materials already brought on the record, it should proceed under Rule 3 of Order XVII and not under rule 2.

"

9. The procedure laid down under Rule 3 there must be element. The adjournment must have been on the instance of a party, secondly there must be material on record for the court to peruse and decide the case. For proceeding under Rule 3 of Order XVII, C.P.C. there shall be material to decide the suit forthwith. The trial court proceeded to decide the suit forthwith without any material before it and has acted in its jurisdiction illegally and with material irregularity. Reference is made to the case of Tanzeem Corporation Gupis/Yasin v. Momin Shah 2016 CLC 1490, in which it was held: "

13. The learned trial Court although has acted under rule 3 of Order XVII, C.P.C. while passing the impugned order but practically he has adopted the procedure as provided under Rule 8 of Order IX, C.P.C. The provisions of Rule 8 of Order C.P.C. are attracted when the plaintiff remains absent when the suit was called for hearing, the Court may make an order that the suit be dismissed. In the present matter the learned trial Court has acted under the procedure provided in Rule 3 of Order XVII, C.P.C. but through the impugned order has dismissed the suit practically adopting the procedure provided under Rule 8 Order IX, C.P.C. whereas the provision of Rule 3 of Order XVII, C.P.C. being permissive and discretionary in nature is very much different from the provisions of rule-8 of Order IX, C.P.C. In Rule-3 of Order XVII, C.P.C. the words "proceed to decide forthwith" do not mean to decide the Suit forthwith or "dismiss the suit forthwith". Court may proceed with the Suit notwithstanding either party failed to produce evidence, meaning thereby that in case of default to do a specific act by any party to the suit, next step required to be taken in the suit should be taken. The word "forthwith" means without any further adjournment yet it cannot be equated with the words "at once" pronounce a judgment forthwith. The next object of the provision of rule-3 is that after striking off the defence would not vest the Court with an authority to grant decree ignoring the material on file which means that when the Court suggests that penalizing provisions became mandatory to be applied it should at least record the statement of the party concern and then adjourn the case for evidence of the opposite party or at least adjourn the case for hearing arguments of the parties enabling itself to deliver a full judgment returning finding on each issue so as to fulfill the actual object and mandate of Rule 3 of Order XVII, C.P.C."

10. Learned trial court has not discussed the material available on record, dismissed the suit for non interest and non-prosecution, which does not fulfill the requirement of Rule 3 of Order XVII, C.P.C. While the learned appellate court decided the appeal on merit and suit has been dismissed on the ground that the land in question is unsettled one, therefore, the petitioner/plaintiff has no title. The judgment of learned appellate court is not according to settled law. There is no provision in the law where the settlement has not been conducted by the concerned state functionaries; the inhabitant(s) of the unsettled areas lost his/their title. The title should be decided on the basis of evidence and not on presumptions and conjunctions. Reference is made to the case of Rahim Khan v. Station Commander Station Headquarter Zhob 2019 CLC 114 [Balochistan], wherein it was held: "

Though the Government did not conduct a settlement proceeding in the area to maintain a record, but it does not dis-entitle a person to be owner of an unsettled property. If he/she proves his/her ownership through other sources or evidence, such claim of an ownership and entitlement shall not be disbelieved merely because of non-availability of revenue documents.

" In view of the above the instant revision petition is accepted. The order and decree dated 2nd February, 2016 passed by learned Civil Judge, Dalbandin and judgment and decree dated 28th October, 2016 passed by learned Additional District Judge, Dalbandin are set aside. The case is remanded to the trial court with direction to provide two opportunities to the petitioner/plaintiff to produce his evidence. On failure to act strictly according to law and decide the case. However, the trial court should not influence by the observations made by the appellate court and decide the case on its own merit. The trial court is directed to decide the case possibly within a period of four (04) months. No order as to cost. MQ/5/Bal. Revision allowe