1994 PLP 577 (MLD)

The petitioners/defendants in a suit for dissolution of partnership and rendition of accounts have called in question the order, dated 20-11-1979 passed by the learned Additional District Judge; Gujranwala, through which after accepting the appeal of the respondents/plaintiffs against the order, dated 28-5-1978 passed by the learned trial Court through which after closing their evidence under Order 17, Rule 3, C.P.C., their suit was dismissed, the case has been remanded for recording their evidence.

2. The record of the learned trial Court was summoned which is available. On 25-2-1978 the case was fixed for disposal of miscellaneous application which had earlier been moved by the present petitioners under Order 16, Rule 1, C.P.C. The said application was decided on the said date and the case was then adjourned to 28-5-1978 in routine for recording the evidence of the respondents/plaintiffs. On this date no evidence was produced by the respondents, therefore, the learned trial Court proceeded to pass an order under Order 17, Rule 3, C.P.C. for closing their evidence and in view of the fact that no evidence was available the suit was dismissed. This order was challenged by the respondents in appeal before the learned lower Appellate Court which has been accepted through the impugned order, dated 20-11-1979 and the case remanded. The learned lower appellate Court took the view that according to the well-established law the case was not fixed on 28-5-1978 on the request of the respondents, therefore, provisions of Order 17, Rule 3, C.P:C. were not attracted.

3. I have heard learned counsel for both the parties. The view taken by the learned lower Appellate Court is perfectly in accordance with the law declared by the superior Courts in judgments reported as Maulvi Abdul Aziz' Khan v. Mst. Shah Jahan Begum and 2 others PLD 1971 SC 434; Jindwadda and others v. Abdul Hamid and another PLD 1990 SC 1192 and Qutab-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109.

4. Learned counsel for the petitioners argued that previous to 25-2-1978 numerous dates were given to the respondents to produce the evidence, therefore, the provision of Order 17, rule 3, C.P.C. was correctly applied. 4-A.I am not inclined to accept this argument as the question of applicability of provisions of Order 17, Rule 3, C.P.C. is to be determined with reference to the fact as to whether the date on which the said provisions were applied, the date was fixed on the request of the party whose evidence was intended to be closed. This being so, the argument is repelled.

5. The learned lower Appellate Court has not been shown to have committed any material irregularity and illegality in passing the impugned order as the same is in accordance with law. The revision petition has no merits which is accordingly dismissed with no order as to costs. H.B.T./N-128/L Revision dismissed.