2016 PLP 112 (CLCN)

AALIA NEELUM, J.

Through the instant appeal, the appellant has challenged the validity of the impugned judgment and decree dated 15.4.2013 passed by the learned Civil Judge 1st Class, Lahore whereby suit filed by the appellant was dismissed under Order XVII, Rule 3, C.P.C., for lack of evidence.

2. Briefly, the facts narrated in the plaint are that the appellant filed a suit for declaration and injunction claiming himself to be the real owner of plot No.51-A, Shah Jamal Colony, Lahore which was initially allotted to one Muzaffar Hussain who entered into a sale agreement with the appellant qua the suit property. Said Muzaffar Hussain, vendor also executed general power of attorney in favour of the appellant and it was the appellant who also got executed agreement to sell in favour of his daughter, namely Razia Sultana and niece Mst. Nasreen Gulzar who were minors at that time. The appellant also deposited the remaining installments with Lahore Improvement Trust (at present Lahore Development Authority) on behalf of said vendor and got the sale deed executed and registered in favour of said vendor vide document No.7837 dated 17.5.1978 as a general attorney of the said vendor. Accordingly, it was the appellant who from his own resources initially purchased the suit property and alienated the same in favour of respondents Nos.2 and 3 vide sale deed dated 23.8.1978 whereas the second sale deed was executed on 18.1.1979 in favour of respondents Nos.4 and 5 and finally got the bungalow in question constructed on it by making respondents Nos.2 to 5 as ostensible owners. Further asserts that the property in question still exists in the LDA record in the name of said vendor, namey, Muzaffar Hussain and the appellant never applied for its transfer in the name of ostensible owners, i.e. respondents Nos.2 to

5. Further asserts that the appellant is residing in the suit property along with respondents Nos.2 and 3 whereas respondents Nos.4 and 5 are residing in Karachi. The appellant is also in possession of all the original documents of the suit property and exerting his right over the suit property being its real owner whereas the respondents are admitting the ownership of the appellant. Lastly asserts that the bungalow in question and the land underneath was purchased by the appellant from his own resources.

3. On the other hand, the respondents by filing written statement before the learned trial court, denied the submissions made in the plaint and prayed for its dismissal. The application filed by the appellant in terms of Order XXXIX, Rules 1 and 2, C.P.C. seeking status quo order was also dismissed on 10.9.2011 by the learned trial court.

4. Later on, out of divergent pleadings of the parties, issues were framed by the learned trial court on 11.10.2011 and the case was fixed for evidence of the appellant/plaintiff on 15.11.2011. On the said date, evidence of the appellant/plaintiff was not available and the case was adjourned to 15.12.2011 for evidence. Before the said date i.e. 15.12.2011 the learned trial court received status quo order issued by the Lahore High Court, Lahore passed in F.A.O. No.50/2011 on 24.11.2011 against the stay order and proceedings were remained adjourned by the learned trail court on numerous dates of hearing i.e. 15.12.2011, 13.1.2012, 18.2.2012, 30.3.2012, 4.5.2012, 31.5.2012, 22.12.2012, 17.1.2013, 31.1.2013, 15.2.2013, 18.3.2013 for the reason "to await the order of the Hon'ble High Court". On 18.3.2013 once again the case was adjourned to 26.3.2013 for recording of plaintiff's evidence. On 26.3.2013 learned counsel for the parties was present and on their request, the case was adjourned to 30.3.2013 by granting last opportunity for the plaintiff's evidence but on 30.3.2013 learned vice counsel appeared before the learned trial court and got recorded his statement which shows that mother of learned counsel for the plaintiff/appellant had died and due to the said reason, plaintiff's evidence was not available. The learned trial court adjourned the proceedings to 4.4.2013 by granting final last opportunity. It is relevant to mention here that on the said date, learned counsel for the respondents was not in attendance on 4.4.2013 and again, absolute last final opportunity was granted for production of plaintiff's evidence and attendance of learned counsel for the parties was marked by the learned trial court and case was adjourned to 15.4.2013. Once again, on 15.4.2013 vice learned counsel, namely, Mushtaq Ahmad, Advocate appeared before the learned trial court and got recorded his statement without oath that senior counsel Mr. M. Iqbal, Advocate had died and "notice pairvi" be issued to the appellant/plaintiff to pursue his case but on the said date, after recording statement of the learned vice counsel, the learned trial court proceed to dismiss the suit under Order XVII, Rule 3, C.P.C. vide the impugned judgment dated 15.4.2013, hence the instant appeal.

5. It has been contended by the learned counsel for the appellant that the impugned judgment has been passed in hasty manner and the learned trial court has not taken into consideration qua sudden demise of learned counsel for the appellant/plaintiff and in this regard, information was given to the learned trial court in the shape of statement got recorded by the learned vice counsel of the appellant/plaintiff but the learned trial court had not issued "notice pairvi" to the appellant/plaintiff. Further contends that the order passed by the learned trial court is based on surmises and conjectures and as such the impugned judgment under Order XVII, Rule 3, C.P.C. has been passed without lawful authority which is liable to be set aside.

6. On the other hand learned counsel for the respondents has vehemently opposed the submission made by the learned counsel for the appellant by stating that after framing of issues, the case was fixed for recording of evidence of the appellant/plaintiff but they failed to produce the same after availing number of opportunities including last and final opportunities. Further contends that even the appellant was afforded last and final opportunity but he remained failed to produce an iota of evidence and no plausible reason for non-production of evidence has been advanced by the appellant, therefore, in view of the circumstances, the right of the appellant/plaintiff for producing the evidence was closed under Order XVII, Rule 3, C.P.C.

7. We have heard the arguments advanced by the learned counsel for the parties and have minutely gone through the record.

8. Admittedly the learned counsel for the appellant had died and in this regard statement was made by the learned vice counsel before the learned trial court on 15.4.2013 and request was made for issuance of "notice pairvi" to the appellant/plaintiff but the learned trial court instead of issuing "notice pairvi", had proceeded to dismiss the suit under Order XVII, Rule 3, C.P.C. The learned trial court was not mindful of this fact that whether status quo order issued by the Lahore High Court, Lahore was set aside or in field due to which the matter remained adjourned for numerous dates, record shows that same remained in filed till 08.5.2013 whereas the impugned judgment was passed on 15.4.2013 and the learned court also did not take any care to issue "notice pairvi" to the appellant/plaintiff. Even otherwise, interim orders dated 18.3.2013 to 04.4.2013 appears to be of routine orders which were passed by the learned trial court due to non-availability of the plaintiff's evidence without objection of respondents/defendants. According to our humble view said orders did not furnish a lawful and solid basis for closure of the evidence of the appellant. The record also shows that the learned trial court had not specifically informed the appellant that in case evidence was not produced on the next date of hearing, penal provisions of Order XVII, Rule 3, C.P.C. will be applied. The record also reflects that neither the respondents nor their learned counsel objected on the adjournments of the case on the preceding dates i.e. from 18.3.2013 to 4.4.2013 whereas it is held by the Hon'ble Supreme Court of Pakistan in the case of Syed Tasleem Ahmad Shah v. Sajawal Khan etc. (1985 SCMR 585) that:- "In the particular case before us we find that the adjournment had been requested for by the petitioner and the request was made on his behalf by his counsel. The respondents had not objected to it. This would not amount to granting time to him at his request." In the above cited judgment, order of the closure of evidence was set aside and the case was remanded for its decision afresh by the learned trial court and as such the learned trial court was not justified to invoke the provisions of Order XVII, Rule 3, C.P.C. to close the appellant/plaintiff's evidence. It appears that the impugned judgment and decree has been passed in a hasty manner. The law favours decision of the cases on merits and not on mere technicalities. The provisions contained in Order XVII, Rule 3, C.P.C. are not mandatory in nature, discretionary, however, discretion must be exercised in accordance with the principle of law. In this regard, reliance can be placed in the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others reported in (PLD 1985 SC 345) wherein it has been held as under:- "Proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent."

9. Since the case remained adjourned w.e.f. 18.3.2013 to 4.4.2013 and on the said dates, adjournments were sought by a party and the same were neither objected nor opposed by the learned counsel for the respondents/defendants, the appellant has made out a case particularly when the learned vice counsel informed the learned trial court qua demise of senior counsel for the appellant which fact is not denied by the learned counsel appearing on behalf the respondents/defendants. In view of the judgments of the Hon'ble Supremes Court of Pakistan, referred above, and admitted fact that the learned senior counsel died and "notice pairvi" was not issued to the plaintiff, the provision of Order XVII, Rule 3, C.P.C. is not applicable in the instant case.

10. Keeping in view the facts and circumstances of the case, this appeal is allowed and the impugned judgment and decree dated 15.4.2013 is set aside. The case is remanded to the learned trial court with the direction that the suit titled "Haji Muhammad Sultan v. Lahore Development Authority etc" shall be deemed to be pending before the learned Civil Judge and he shall proceed with the matter further by giving an opportunity to the appellant to lead evidence and thereafter evidence of the respondents/defendants be recorded. The suit shall be decided afresh on the basis of the evidence so recorded. The learned trial court is further directed to decide the matter expeditiously preferably within six months from the receipt of this order. ARK/M-83/L Appeal allowed.