2010 PLP 306 (CLC)

ATTAULLAH KHAN, J.

Through this civil revision the petitioners have impugned the judgment and decree dated 25-5-2009 passed by learned Additional District Judge-1, D.I. Khan vide which he dismissed the appeal against the judgment and decree passed by learned Civil Judge-1, D.I. Khan on 2-4-2007.

2. The brief facts are that respondent-plaintiff filed a suit for recovery of Rs.1,00,000 along with counsel fee of Rs.10,000 against Mehrdin, predecessor of petitioners.

3. The suit was contested by the defendants by filing written statement which resulted in seven issues. On 7-2-2007 evidence of the plaintiff was recorded and concluded and the case was fixed for evidence of the defendants. On 24-2-2007 evidence of the defendants was absent, therefore, chance was given on payment of cost of Rs.200. On 16-3-2007 defendants' evidence was not available, therefore, notice under Order XVII, rule 3, C.P.0 was given and the case was fixed for evidence on 2-4-2007. It is also on the record that on 2-4-2007 defendant and his evidence was not available and as a result, his right of defence was struck off and case fixed for arguments and order. On 26-4-2007 after hearing arguments, the suit of the respondent-plaintiff was decreed against the defendants vide judgment and decree dated 26-4-2007.

4. Learned counsel for the petitioners contended that no sufficient opportunity was given to the defendants for recording his evidence and therefore, the petitioners were condemned unheard. Moreover, according to the learned counsel, the learned trial Court as well as the appellate Court should have decided the case of the parties on the basis of available record but with appreciation of evidence, the impugned judgments and decrees were passed by both the Courts which are nullity in the eyes of law.

5. As against this, learned counsel for the respondent contended that sufficient time was granted to the petitioners for producing evidence and after their failure, the impugned judgments and decrees were passed which are strictly in accordance with law.

6. I have gone through record and heard the arguments.

7. The crucial order sheet is dated 2-4-2007. It reveals that on this date neither the defendant was present nor his evidence available and the Court proceeded them under Order XVII, rule 3, C.P.C. and right of defence was struck off. In my opinion, the Court could not pass such an order in the absence of the defendant. The Court could only pass such order in the presence of the party and in case of non-availability of the evidence. Only two chances have been given and thereafter provisions of Order XVII, rule 3, C.P.C. were pressed into service. Moreover, the impugned judgment reveals that the learned trial Court has not discussed and appreciated the evidence of the plaintiff. The absence of defendant's evidence does not mean that whatever is produced by the plaintiff in the shape of evidence is to be believed. It is the duty of the Court to assess and examine the evidence and thereafter form an opinion. No such efforts have been made by the Courts below, therefore, the impugned judgments and decrees of both the Courts are not speaking one. By not giving sufficient opportunity to the petitioners for producing evidence, the trial Court has committed an error and denied defence and condemned the petitioners unheard.

8. In view of my above discussion, the petition merits acceptance. Accordingly, the revision petition is accepted, the impugned judgments and decrees of both the Courts are set aside and the case is remanded back to the learned trial Court with the directions to record evidence of the defendants. The petitioners are burdened with cost of Rs.4,000 to be paid to the respondent in the trial Court. The petitioners are further directed to produce their entire evidence on 22-12-2009 in trial Court. The trial Court would be at liberty to proceed against the petitioners in case of their failure to produce evidence without sufficient cause. A short dispute is involved, therefore, the trial Court is directed to dispose of the matter within three months. The parties are directed to appear in the trial Court on 22-12-2009. H.B.T./220/P Case remanded.