P L D 2021 Balochistan 51
Before Abdul Hameed Baloch, J
MUHAMMAD NOOR ---Petitioner
Versus
MUHAMMAD USMAN and 4 others ---Respondents
Civil Revision No. 374 of 2016, decided on 18th November, 2020.
(a) Civil Procedure Code (V of 1908) ---
----O. XVII, Rr. 2 & 3 & O. IX---Specific Relief Act (I of 1877), Ss. 42 & 39--- Suit for
declaration and cancellation of sale- deed ---Dismissal of the suit for non -prosecution and lack
of interest ---Effect ---Appellate Court upheld the Trial Court's view ---Validity ---Held, that
there was distinction between R.2 & R.3 of the O.XVII, C.P.C.; in R. 2 of the said Order,
where the suit was adjourned, the parties or any of them failed to appear, the Court could proceed to dispose of the suit in one of the modes pre scribed under O.IX, C.P.C. or could
make such order as it thought fit; while under R. 3, when time was granted and any party failed to produce his evidence or to cause the attendance of his witnesses or to perform any other act, which was necessary for fur ther progress of the suit, on default, the Court would
proceed to decide the suit forthwith---To attract the procedure laid down under O.XVII, R.3
of the C.P.C.; firstly adjournment must have been on the instance of a party and secondly
there must be mater ial on record for the Court to peruse and decide the case ---For
proceedings under O. XVII, R. 3, C.P.C., there had to be material to decide the suit
forthwith ---Trial Court, in the present case, proceeded to decide the suit forthwith, without
having any ma terial before it, and thus, had acted in its jurisdiction illegally and with
material irregularity ---Trial Court, in the present case, had not even discussed the material
available on record and dismissed the suit for lack of interest and non- prosecution, which did
not fulfil the requirement of O. XVII, R. 3, C.P.C.---While Appellate Court decided the case on merit and suit was dismissed on the ground that land- in-question was unsettled one,
therefore, the plaintiff had no title ---Said judgment of the Appel late Court was not according
to the law as there was no provision in the law where the settlement having not been conducted by the concerned state functionaries, the inhabitant(s) of the Unsettled Areas would lose his/their title ---High Court set aside the decrees and judgments passed by both the
Courts below and remanded the case to the Trial Court with direction to provide two opportunities to the petitioner/plaintiff to produce his evidence ---Revision was allowed, in
circumstances.
Muhammad Haleem v. H . H. Muhammad Naim PLD 1969 SC 270 and Tanzeem
Corporation Gupis/Yasin v. Momin Shah 2016 CLC 1490 ref.
(b) Title ---
----Property ---Title was to be decided on the basis of evidence and not on presumptions and
conjunctions.
Rahim Khan v. Station Commander Station Headquarter Zhob 2019 CLC 114 ref.
Nemo for Petitioner.
Nemo for Respondent.
Date of hearing: 6th November, 2020.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---The petitioner/plaintiff assailed order and decree
dated 2nd February, 2016 (impugned order and decree) passed by learned Civil Judge,
Dalbandin (trial court), whereby the suit of the petitioner/plaintiff was dismissed in non -
prosecution and non interest and judgment and decree dated 28th October, 2016 (impugned judgment and decree) passed by learned Additional District Judge, Dalbandin, (appellate court) whereby the appeal filed by the petitioner/plaintiff was also dismissed.
2. Concise facts of the case are that the petitioner/plaintiff filed a suit for declaration,
cancellation of sale de ed, consequential relief against the respondents/defendants before
learned Civil Judge, Noshki with the prayer:
3. The respondents/ defendants filed written statements and controverted the contention
of petitioner/plaintiff and prayed for dismissal of the suit.
4. The trial court framed issues. The petitioner/plaintiff produced PW -1 Toota Khan,
whereafter, failed to produce further evidence, as such on 2nd February, 2016 the learned trial court dismissed the suit in non- prosecution and non- interest under Or der XVII, Rule 3
Civil Procedure Code (C.P.C.). It would be appropriate to reproduce the impugned decree which reads as under:
"It is ordered that the suit of plaintiff is dismissed in non -prosecution and non- interest
in terms of Order XVII, Rule 3, C.P.C ."
5. The petitioner/plaintiff filed appeal before learned Additional District Judge,
Dalbandin, who vide judgment and decree dated 28th October, 2016 dismissed the same, hence the petitioner/ plaintiff is before this court.
6. The instant petition was fil ed in 2016. Despite service neither the petitioner/plaintiff
nor his counsel are in attendance. Since the matter is old one, therefore, I have no option but to peruse the record and decide the revision petition on the basis of available record.
7. Perused the record. The record reflects that the learned trial court vide order and
decree dated 2" February, 2016 dismissed the suit of the petitioner/plaintiff in non-prosecution and non- interest. It would be relevant to reproduce Order XVII, Rule 3, C.P.C.:
"Order XVII, Rule 3, C.P.C., Court may proceed notwithstanding either party fails to
produce his evidence, etc. ---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."
8. It appears that there is distinction between Rule 2 and Rule 3 of the Order XVII,
C.P.C. In Rule 2 where the suit is adjourned, the parties or any of them fails to appear the court may proceed to dispose of the suit in one of the mode prescribed under Order IX, C.P.C. or make such order as think it fit. While under Rule 3 of Order XVII, C.P.C. when
time is granted any party failed to produce his evidence or cause of his attendance or perform any other act which is necessary for further progress of the suit, on default the court would proceed to decide the suit forthwith. The Honorable Supreme Court in case Muhammad
Haleem v. H. H. Muhammad Naim PLD 1969 SC 270 held:
"----The consensus of judicial opinion appears to be in favour of the view that if it is
possible for a court to base a decision on merits upon the materials alre ady brought on
the record, it should proceed under Rule 3 of Order XVII and not under rule 2.---"
9. The procedure laid down under Rule 3 there must be element. The adjournment must
have been on the instance of a party, secondly there must be material on r ecord for the court
to peruse and decide the case. For proceeding under Rule 3 of Order XVII, C.P.C. there shall be material to decide the suit forthwith. The trial court proceeded to decide the suit forthwith without any material before it and has acted i n its jurisdiction illegally and with material
irregularity. Reference is made to the case of Tanzeem Corporation Gupis/Yasin v. Momin Shah 2016 CLC 1490, in which it was held:
"13. The learned trial Court although has acted under rule 3 of Order XVII, C.P.C.
while passing the impugned order but practically he has adopted the procedure as
provided under Rule 8 of Order IX, C.P.C. The provisions of Rule 8 of Order C.P.C. are attracted when the plaintiff remains absent when the suit was called for hearing, the Court may make an order that the suit be dismissed. In the present matter the
learned trial Court has acted under the procedure provided in Rule 3 of Order XVII, C.P.C. but through the impugned order has dismissed the suit practically adopting the
proce dure provided under Rule 8 Order IX, C.P.C. whereas the provision of Rule 3 of
Order XVII, C.P.C. being permissive and discretionary in nature is very much
different from the provisions of rule -8 of Order IX, C.P.C. In Rule -3 of Order XVII,
C.P.C. the word s "proceed to decide forthwith" do not mean to decide the Suit
forthwith or "dismiss the suit forthwith". Court may proceed with the Suit notwithstanding either party failed to produce evidence, meaning thereby that in case
of default to do a specific act by any party to the suit, next step required to be taken in
the suit should be taken. The word "forthwith" means without any further adjournment yet it cannot be equated with the words "at once" pronounce a judgment forthwith. The next object of the provis ion of rule -3 is that after striking off the
defence would not vest the Court with an authority to grant decree ignoring the material on file which means that when the Court suggests that penalizing provisions
became mandatory to be applied it should at le ast record the statement of the party
concern and then adjourn the case for evidence of the opposite party or at least
adjourn the case for hearing arguments of the parties enabling itself to deliver a full judgment returning finding on each issue so as to fulfill the actual object and mandate
of Rule 3 of Order XVII, C.P.C."
10. Learned trial court has not discussed the material available on record, dismissed the
suit for non interest and non- prosecution, which does not fulfill the requirement of Rule 3 of
Order XVII, C.P.C. While the learned appellate court decided the appeal on merit and suit
has been dismissed on the ground that the land in question is unsettled one, therefore, the
petitioner/plaintiff has no title. The judgment of learned appellate cour t is not according to
settled law. There is no provision in the law where the settlement has not been conducted by the concerned state functionaries; the inhabitant(s) of the unsettled areas lost his/their title. The title should be decided on the basis of evidence and not on presumptions and
conjunctions. Reference is made to the case of Rahim Khan v. Station Commander Station Headquarter Zhob 2019 CLC 114 [Balochistan], wherein it was held:
"----Though the Government did not conduct a settlement proceedi ng in the area to
maintain a record, but it does not dis -entitle a person to be owner of an unsettled
property. If he/she proves his/her ownership through other sources or evidence, such
claim of an ownership and entitlement shall not be disbelieved merely because of
non- availability of revenue documents.----- "
In view of the above the instant revision petition is accepted. The order and decree
dated 2nd February, 2016 passed by learned Civil Judge, Dalbandin and judgment and decree dated 28th October, 2016 passed by learned Additional District Judge, Dalbandin are set aside. The case is remanded to the trial court with direction to provide two opportunities to the petitioner/plaintiff to produce his evidence. On failure to act strictly according to law and
decide the case. However, the trial court should not influence by the observations made by the appellate court and decide the case on its own merit. The trial court is directed to decide the case possibly within a period of four (04) months. No order as t o cost.
MQ/5/Bal. Revision alloweThis 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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