1993 PLP 377 (MLD)

Date of hearing: 7th June, 1992. This petition under section 115 of the C.P.C. seeks revision of the judgment and decree of the learned Additional District Judge, Sialkot, dated 22nd July, 1989 whereby an appeal filed by the petitioners against the decree of the trial Court dated 26th June, 1988 was dismissed

2. The dispute arises out of a suit for possession filed by the respondents which was contested by the petitioners by filing a written statement which led to the framing of relevant issues:

3. The respondent produced their evidence in support of their case. As the petitioner failed to lead any evidence it was closed under Order 17, Rule 3 of the C.P.C. on 26th June, 1988 and the suit of the respondents was decreed. Aggrieved, the petitioners filed an appeal which as already stated, was dismissed by the Additional District Judge.

4. Ch. Mushtaq Ahmad, the learned counsel for the petitioners in support of this petition has raised two contentions; firstly, that according to the case of the petitioners on 26th June, 1988 at the time of call of the case, the learned counsel representing the petitioners was not present and was busy before another Court and despite the request made the learned trial Court did not wait for the learned counsel for the petitioners but proceeded to close the evidence of the petitioners and decreed the suit. The other contention is that notwithstanding the closure of the evidence of the petitioners who were defendants in the suit, it was incumbent upon the trial Court to have decided the suit on merits. According to the learned counsel both these contentions were raised before the learned Additional District Judge but not adverted to by him while deciding the appeal.

5. Mr. Abdur Rehman Cheema, Advocate, appearing on behalf of the respondents has been heard in reply. Both the contentions raised by the learned counsel for the petitioners appear to be well founded. It is well settled that the provisions of Order 17, italic 3 are stringent iii nature and have to be applied with extreme care and caution. In support of the assertion that the learned counsel for the petitioners was not present at the time of the call of the case an affidavit of Mian Mukhtar Ahmad, Advocate has been placed on the record in which he has categorically state that he did not appear before the trial Court at the time of call as he was appearing another Court. Nora die tenor o? the judgment of the Additional District Judge and the grounds of appeal before him it is clear that this question was raised before him by the petitioner but unfortunately no heed was paid to it.

6. It is trite law that notwithstanding the closure of evidence under Order 17 Rule 3, C.P.C. the case before the Court must be decided on merits. In the present case it is not even discernible from the judgments of the Courts below as to what were the issues framed in the case. No specific findings on these issues have also been recorded. This aspect of the case also has escaped the attention of the learned Additional District Judge. It thus appears that the appeal filed by the petitioners has not been decided in accordance with law. As a result of what has been stated above, this petition is allowed and the judgment and decree of the Additional District Judge, Sialkot, dated 22nd in July, 1989 is set aside with the result that the appeal filed by the petitioner: shall be deemed to be pending before the Additional District Judge who shall proceed to decide the same afresh in accordance with law. No order as to costs. F.R./A‑166/L?????????????????????????????????????????????????????????????????????????????????????? Petition allowed.