2006 PLP 1466 (YLR)

MIAN SAQIB NISAR, J.

The petitioners brought a suit for the specific performance against the respondents seeking the enforcement of the agreement to sell dated 1-9-1997, pertaining to the area measuring 5 Kanals, 5 Marlas and 1-1/2 Sarsais (described in paragraph No.1 of the plaint); another suit was filed by them regarding another parcel of the land, but against the same respondents; both the suits were pending in the one Court and same dates of hearing were fixed but on 24-11-2004, through the administrative order of the learned District Judge, both the cases were withdrawn from the Court of Mr. Mubassar Nadeem, Civil Judge and were entrusted to the Court of Rana Muhammad Azam; the learned transferee Court fixed the cases for 21-12-2004 for the evidence of the petitioners but on the said date, bifurcated the dates by fixing the present case for 26-1-2005 and the other for 27-1-2005; since then both the case were tried separately and ultimately on the requisite day i.e. 23-2-2005, when the petitioners failed to appear before the Court; their evidence has been closed by the learned trial Court, by applying the provisions of Order XVII, rule 3, C.P.C. and the suit has been dismissed. It may also be relevant to mention here that the other suit is still pending before the learned trial Court.

2. It is the case of the petitioners that they misunderstood the date of hearing, as both the suits were earlier tried together, therefore, they validly thought that this case is also fixed for the date in the other matter. Without prejudice to the above, it is also submitted that even otherwise, the suit should not have been dismissed by applying the provisions of Order XVII, rule 3, C.P.C., as none appeared on behalf of the petitioners, on that date, rather it should have been dealt with under Order XVII, rule 2, C.P.C. It is also stated that on the said date, even respondents' side was not represented and thus, it cannot be ruled out that the respondents had also noted down wrong date of hearing. Aggrieved of the dismissal of their suit, the petitioners preferred an appeal, but without any success.

3. Learned counsel for the petitioners has reiterated the argument. I have scanned the record and find that in view of the two connected cases proceeding almost together, the possibility of noting down the wrong date cannot be ruled out, thus, in the interest of justice, which requires that the rights of the parties should not be thwarted on the technicality, rather those be decided on merits. Resultantly, by allowing this petition, I set aside the judgments and decrees of the Courts below and direct the learned trial Court to fix this case along with the other, on the same date for hearing and to decide the same by trying the two mattes simultaneously. But I do find that the petitioners have been negligent to an extent by allegedly noting an incorrect date of hearing; had they examined the file and procured the order sheet, as should be done, they would have found that this case was not fixed along with the other matter; besides the above, as the petitioners had obtained certain opportunities to produce their evidence, but have failed, therefore, may be they wanted to avoid the situation of closure of their evidence, choosing a lesser rigorous order of dismissal of the suit for non-prosecution, with the hope to get it revived by showing the wrong noting of the date, thus, in order to compensate the respondents' side, the petitioners are directed to pay Rs.5,000 as costs, which shall be paid by the petitioners to the respondents on he next date of hearing. F.B./A-48/L Petition allowed.