2021 PLP 1181 (CLC)

ABDUL HAMEED BALOCH J.

Through this judgment I intend to dispose of above tilted civil revision petition filed by the petitioner/ plaintiff against the order dated 19th February, 2019 (impugned order) passed by learned Qazi Bhag (trial court) whereby the suit of the petitioner/plaintiff was dismissed tinder Order XVII, Rule 3, C.P.C. and against the judgment and decree (impugned judgment and decree) passed by learned Majlis-e-Shoora Sibi (appellate court), whereby the appeal filed by the petitioner/plaintiff was also dismissed.

2. Concise facts of the case were that the petitioner/plaintiff filed a suit for declaration, cancellation of Iqrar Nama and permanent injunction against the respondent/ defendant in respect of the property, description whereof mentioned in para-2 of the plaint, with the following Prayer:

3. The respondent/defendant contested the suit on legal as well as factual grounds by filing written statement.

4. Out of the pleadings of the parties the learned trial court framed five issues. Whereafter, the petitioner/plaintiff was directed to file list of witnesses and produce his evidence, but despite affording several opportunities the petitioner/plaintiff failed to file list of witnesses and produce evidence, as such on 19th February, 2019 the learned Qazi Bhag dismissed the suit of the petitioner/plaintiff under Order XVII, Rule 3, C.P.C. Being aggrieved of the impugned order the petitioner/plaintiff preferred appeal before Majlis-e-Shoora Sibi who vide judgment and decree dated 8th October, 2019 dismissed the appeal; hence the petitioner/plaintiff approached this court by filing instant revision petition.

5. Heard learned counsel for the petitioner and perused the record. The petitioner/plaintiff filed a suit for declaration, cancellation of Iqrar Nama and permanent injunction before the court of learned Qazi Bhag. The respondent/defendant filed written statement and controverted the contention of the petitioner/plaintiff. The learned trial court framed issues and the case was fixed for filing list of witnesses of petitioner/plaintiff and evidence. The learned trial court afforded several opportunities for submission of list of witnesses and producing evidence, but the petitioner/plaintiff failed to do so. The learned trial court vide impugned order dismissed the suit of the petitioner/plaintiff under Order XVII, Rule 3, C.P.C. for want of proof. The petitioner/ plaintiff filed appeal before learned Majlis-e-Shoora Sibi Division Sibi, which was dismissed on 8th October, 2019.

6. The provision of Rule 3 of Order XVII, C.P.C. applies to the cases where time has been granted to the party at his instance to cause the attendance of witnesses or duly perform the act which is necessary for the progress of the suit. For taking action under the provisions request for adjournment should have been made by the party. The referred Rule provides that where any party to the 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. The Rule applies to the cases where party to whom adjourment was granted on his own request to produce witnesses. The Rule 3 of Order XVII, C.P.C., is a penal provision. It can be exercised when there should be some material to decide the suit. In case Mst. Zaitoon Begum v. Muhammad Ilyas PLD 1971 Lahore 143, it was held that "the court should proceed with the suit forthwith under Rule 1(3) and not proceed to "decide the suit forthwith" under Rule

3. In view what has been said, the trial court while proceeding to decide the suit forthwith without any material before it has acted its jurisdiction illegally and with material defect." Reliance is also made to the case of Israr Ahmed Afzal v. Haji Muhammad Azram 2016 MLD [Islamabad] 1490, wherein it was held: "

. The Hon'ble Islamabad High Court in the case of Pakistan Telecommunication Company Limited (PTCL) and others v. Mst. Najma Ayub and others (2013 CLC 1191), quoted and relied upon the judgment of the Hon'ble Supreme Court in the case of Muhammad Aslam's case (2008 SCMR 942), wherein it was held that the phrase, "proceed to decide the suit forthwith", and the words "proceed to decide the suit forthwith" do not mean "to decide the suit forthwith" or "dismiss the suit forthwith". A 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, the 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 the judgment".

7. The party cannot not be deprived from his right on the basis of technicalities. The law favour decision on merit rather than technicalities. In view of the above discussion the instant revision petition is accepted. The impugned order dated 19th February, 2019 passed by Qazi Bhag and impugned judgment and decree dated 08th October, 2019 passed by learned Majlis-e-Shoora Sibi Division Sibi are set aside. The case is remanded to the learned trial court with direction to provide one opportunity to the petitioner/plaintiff for submission of his list of witnesses and thereafter, afford opportunity to the parties to produce evidence and then decide the case on its own merit in accordance with law within four months without unnecessary adjournment. The parties are left to bear their own costs. SA/252/Bal. Case remanded.