P L D 1963 (W (PLP)

Date of hearing: 8th November 1962. This is an application in Revision against the order of the Chief Judge, Karachi Small Causes Court dated the 9th December 1961, whereby he dismissed the application of the applicant under Order IX, rule 13, C. P. C. on the ground that the suit was disposed of under Order XVII, rule 3, C. P. C. and therefore Order IX, rule 13 did not apply.

2. The present application arises out of a proceeding for ejectment of the applicant from a certain tenement.

3. It would be useful to reproduce a portion of the judgment in order to find out as to whether the learned Judge has correctly applied the provision of Order XVII, rule 3, C. P. C. It reads as under :‑ "The application has been opposed on the ground that the suit was disposed of under Order XVII, rule 3, C. P. C. and as such the provisions of Order IX did not apply to the case and as such the ex parte decree cannot be set aside. The applicant filed the suit on 5‑5‑

61. The written statement was filed on 31‑8‑

61. The suit was then fixed for final hearing for evidence of the parties and was adjourned from time to time till 14‑9‑

61. The opponent remained absent. He had not summoned any evidence. The applicant was examined and the suit was decreed. It will thus be seen that the case was adjourned after the written statement for the evidence of the parties from time to time till 14‑9‑61, when it was decreed. In my opinion, therefore, the provisions of Order XVII, rule 3 apply to the case and the remedy of the applicant lay by way of appeal or revision but not by applica tion under Order IX, rule 13." It is clear from the above that the learned Judge did not consider the provision of Order XVII, rule 3, C. P. C. The relevant rule (Order XVII, rule 3) reads as under :‑ "Where any party to a suit to whom time has been granted fails to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may notwithstanding such default proceed to decide the suit forthwith." It is clear that the rule cannot be applied unless time has been granted to a party at his instance to do one or other of the three things mentioned in the rule, that is, to produce evidence or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit, and unless default had been committed by such party in doing the act for which time was granted. It is clear from the order itself that the applicant had not taken time to do any of the three things mentioned in the rule or perform any other act necessary to the further progress of the suit. Order XVII, rule 3 is a stringent provision of law. It should not be applied unless the circumstances of the case call for. In this connection reliance may be placed on a Division Bench ruling of the Allahabad High Court Rafiq Ahmad and another v. Muhammed Shafi and others (AIR 1949 All. 423). It was held in that case that Order XVII, rule 3 was not applicable as the suit was not adjourned at the instance of the plaintiff. It was further held that an application under Order IX, rule 9 was maintainable. In the present case, as I have already observed, 14th of September 1961 was not an adjourned date at the request of the defendant applicant. In the circumstances the Court could only dispose of the suit under Order XVII, rule 2, C. P. C. I would, therefore., hold that the provisions of Order IX, rule 13 were applicable to the circumstances of the present case. The question whether the defendant has made out sufficient cause within the meaning of Order IX, rule 13, C. P. C. is quite different. It is for the Court below to see whether the defendant has been able to make out a case within the meaning of Order IX, rule 13, C. P. C. or not: In case the defendant does not make out a case within the meaning of Order IX, rule 13, C. P. C., it is open to the learned Judge. to dismiss the application. I would, for the reasons given above, allow the Revision and would remand the case to the learned Small Causes Court, Karachi for deciding the application under Order IX, rule 13, C. P. C. R. B. A. Case remanded.