2012 C L C 202
[Balochistan]
Before Muhammad Noor Meskanzai and Naeem Akhtar Afghan, JJ
Messrs LAHORE DIOCESON TRUST ASSOCIATION LTD. Through Attorney
and 2 others ----Appellants
Versus
SHAFI JOHN and 10 others ----Responde nts
R.F.A. No.9 of 2005, decided on 29th September, 2011.
Civil Procedure Code (V of 1908) ---
----O. IX, R. 8 & O.XVII, R.3 ---Dismissal of suit for non - prosecution on a date fixed for
arguments on plaintiff's application for production of certain do cuments in evidence ---
Validity ---Record showed that plaintiff had made such application after framing of issues
and recording of statements of his four witnesses ---Trial Court on relevant date had to
decide such application, which could have been dismissed for non -appearance of plaintiff,
but not suit for want of interest by pressing into service provision of O.IX, R.8 or
O.XVII, R. 3, C.P.C. ---Trial Court under O.XVII, R.3, C.P.C., was required to decide suit
on basis of material available on record ---High Court set aside impugned order/decree for
being illegal and void ab initio and remanded case to Trial Court with directions to
dispose of such application and then proceed with suit and decide the same within
specified time.
Miss Tehmeena Samad for App ellants.
H. Shakeel Ahmed for Respondents.
Abdul Aziz Khilji Addl. A. -G. on Court notice.
Date of hearing: 21st September, 2011.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. --- Instant appeal is directed against the
order/decree dated 17 -12-2004 passed by learned Civil Judge, Chaman, whereby the suit
filed by appellants for declaration, injunction, possession and recovery of money was
dismissed.
2. Precise facts are that the appellants instituted a suit for Declaration, Injunction,
Possession and recovery of money against respondents in the Court of Civil Judge,
Chaman. It was averred in the plaint, that M/s Diocesan Trust is successor of church
Missionary Trust Association Limited and owners of trust properties throughout Pakistan.
Appellants Nos.2 and 3 a re members of Christian community. There is a Church and elite
buildings constructed upon Khasra No.1623 bearing Khatooni No.105 measuring 24080
sq.ft situated in Bazar Chaman, Tehsil Chaman. It was further averred in the plaint that
appellant No. 1 is the owner of lands and superstructure of Khasra No.1623 Khatooni
No.105 measuring 24080 sq.ft of the properties situated in Bazar Chaman, Tehsil
Chaman. The respondents Nos.1 to 6 occupied the said premises forcibly and raised
illegal construction of 10 shops being occupied by the respondents Nos.7 to 10 illegally
and unlawfully. The respondents Nos.1 to 6 are also maintaining the accounts in the name
of church Society in Muslim Commercial Bank Chaman, which is trust money. The
respondents are posing themselve s to be the owner of said property and are restraining the
people from performing their religious rites/activities. They are changing the nature of the
properties by raising construction. Lastly the appellant claimed entitlement to receive the
rent amount so deposited in Muslim Commercial Bank, Chaman.
3. The respondents Nos.1 to 5 and 8, 10 and 11 contested the suit filed by appellants
by way of filing joint written statement, however, rest of the respondents did not contest
the suit. It may not be irrelev ant to mention here that respondent Muslim Commercial
Bank Chaman was deleted from the list of defendants on 12 -4-2003 whereupon amended
suit as well as amended written statement were filed.
4. Out of the pleadings of parties the learned trial Court framed following issues.
(i) Whether the suit of plaintiffs is not maintainable in view of the preliminary
objection A, D, E and H raised by defendants in their written statement? OPD
(ii) Whether the defendants Nos.1 to 6 have no authority to raise construction or lease
out the property? OPP.
(iii) Whether the defendants have no lawful authority to refrain the plaintiffs to
perform religious rites? OPP
(iv) Whether the plaintiffs are entitled a decree as prayed for?
(v) Relief?
Thereafter the parties were direc ted to adduce evidence in support of their
respective claims. The plaintiffs/appellants produced four witnesses. Whereafter the
appellants submitted an application under section 151, C.P.C. for producing
documents through plaintiffs on 23 -9-2004. The defendants filed rejoinder to the
application. However, the learned trial Court after hearing arguments on application vide
order dated 17 -12-2004 dismissed the suit on the ground of non -appearance.
The appellants feeling aggrieved and dissatisf ied of the above referred order have
preferred instant appeal challenging the same.
We have heard Miss Tehmeena Samad, Advocate for appellants whereas Mr. H.
Shakeel Ahmed, Advocate represented the respondent and Mr. Abdul Aziz Khilji,
Addl: A. -G. appeared on Court notice.
Learned counsel for appellants argued with great vehemence that the learned trial
Court ought to have decided the matter on its own merit but this aspect of the case
escaped notice of lower Court. He further argued that no prope r opportunity was afforded
to the appellants to prove their case and the matter was decided in a very slipshod/haste
manner. The impugned order/decree is against the provisions of Order XX, Rule 5,
C.P.C. The learned trial Court was under legal ob ligation to record its findings on the
basis of material available on record and to decide each and every issue. She stressed that
so far non -appearance of counsel for appellant is concerned; they could not reach in time
due to blocked of road. Lastly it w as prayed that order/decree impugned herein may be set
aside and case be remanded to the trial Court for deciding the same on its own merits.
Mr. H. Shakeel Ahmed Advocate for respondents opposed the contention put forth
by learned counsel for appellant a nd submitted that appellant failed to pursue their case.
The appellants were not interested in prosecution of their case and thus the trial Court has
rightly dismissed the suit.
We have considered the contentions advanced by learned counsel for parties an d
perused the record. Perusal of record reflects that after framing issues the appellant
produced four P.Ws. and their statements are available on record. However; the appellant
in order to file certain documents moved an application seeking permission of the Court
for production of said documents through the plaintiff while appearing in the witness box.
Rejoinder to such application was filed on 19 -2-2004 and the case was fixed for 18 -11-
2004 for arguments on such application. On 18 -11-2004 none appeared f or plaintiffs and
the learned Presiding Officer was on leave. The case was adjourned for 17 -12-2004. It
may be noted here that the date 17 -12-2004 appears to have been interpolated and there is
no signature upon such overwriting. On 17 -12-2004 the trial Co urt dismissed the suit. It is
painful to note that the learned trial Court under misconception dismissed the suit and the
nature of the proceedings were misunderstood. Admittedly it was the application which
was to be decided. At the best, on 17 -12-2004 th e trial Court could have dismissed the
application instead of suit because the suit was not fixed for hearing. The learned trial
Court instead of deciding or dismissing the application has dismissed the suit for want of
interest while pressing into service the provisions of Order XVII, Rule 3, C.P.C. In our
considered opinion, neither the suit could have been dismissed by pressing into service
Order -IX, Rule -8 nor for that matter the suit could have been dismissed under Order -
XVII, Rule -3, C.P.C. On 17 -12-2004 the application filed by the appellants/plaintiffs was
liable to have been considered. Similarly the provisions of Order XVII, Rule -3, C.P.C.
could not be pressed into service in the manner as attracted by the trial Court. Plaintiffs
have produced four witnesses and their statements were available on record. While
pressing into service provisions of Order XVII, Rule (3), C.P.C. the Court is required to
decide the case on the basis of material available on record. The order impugned neither
fulfils the r equirements of Order IX, Rule 8, C.P.C. nor falls under Order -XVII, Rule -3,
C.P.C., hence we have no hesitation in our mind in holding that the impugned order and
decree are illegal, unwarranted, unjustified and void ab initio. Resultantly we accept the
appeal. Set aside the impugned order and decree dated 17 -12-2004 passed by Civil Judge,
Chaman and remand the case to the trial Court with the direction to dispose of the
application and thereafter to proceed with the suit. Since sufficient time has already been
lapsed, therefore, it will be in the interest of justice to direct the trial Court to conclude
the proceedings preferably within a period of four months by providing ample
opportunity to both the parties to lead their respective evidence.
Decree shee t be drawn.
S.A.K./127/Q Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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