P L D 2023 Balochistan 56
Before Gul Hassan Tareen, J
BIBI AYESHA---Petitioner
Versus
MUHAMMAD AKBAR and others ---Respondents
Civil Revision No. 582 of 2021, decided on 26th August, 2022.
Civil Procedure Code (V of 1908) ---
----S. 115, O. XVII, Rr. 2, 3 & O. IX, Rr. 8, 9---Party fails to appear on the day fixed---
Reviosional jurisdiction ---Scope ---Suit of the petitioner was dismissed concurrently by the
Trial Court as well as by the Appellate Court under O. XVII, R. 3 of C.P. C.---Validity ---
Trial Court adjourned the case for submission of list of witnesses, however, the petitioner
failed to submit his list of witnesses on several dates ---No material was available before the
Trial Court for decision of the suit on merits, hence resort to O. XVII, R. 3 of C.P.C. by the
Trial Court was not warranted ---Trial Court at the most could either adjourn the suit or
dismiss it for non- prosecution---Impugned order was not decision on merits for want of
evidence---Impugned order passed by the Trial Court fell in the category of O. XVII, R. 2 read with O. IX, R. 8 of C.P.C.--- Substance of an order/judgment was to be looked into and
not its format ---Such an order could be re -called under O. IX, R 9 read with O. XLVII, R. 1
of C.P.C. ---Appellate Court had illegally exercised appellate jurisdiction as the order of the
Trial Court was not an appealable order ----Revision in exceptional circumstance may lie
against an order which may fall in the category of O. IX, R. 8 of C.P.C.---Impugned order passed by the Trial Court was converted into an order under O. XVII, R. 2 C.P.C. with the
direction that petitioner was at liberty to apply to the Trial Court for restoration of his suit under O. IX, R. 9 read with O. XLVII, R. 1 and S. 151, C.P.C.---High Cour t further observed
and directed that as the date set for filing of list of witnesses was not a date of "hearing" as such, the impugned dismissal order of the Trial Court was a void order ---Impugned judgment
and decree passed by the Appellate Court was set aside ---Appeal preferred by the petitioner
before the Appellate Court stood dismissed, being not against an appealable order ---
Impugned order and decree passed by the Trial Court was converted into an order under O. IX, R. 8 read with O. XVII, R. 2 of C.P. C.---Revision petition was partly allowed.
Rehmatullah and 2 others v. Lal Muhammad PLD 1986 Quetta 121 rel.
Mujeeb Ahmed Hashmi and Sharjeel Haider for Petitioner.
Manzoor Shah and Mubashar Hassan for Respondents Nos. 1 to 3, 6 and 7.
Malik Muhammad Azeem, Assistant Advocate General for Official Respondents.
Date of hearing: 19th August, 2022.
JUDGMENT
GUL HASSAN TAREEN J. ---The revision petition calls in question concurrent
order/judgment and decree, passed by the Courts of Civil Judge -IX, Quett a ("trial Court")
and Additional District Judge -I, Quetta ("appellate Court"), whereby suit instituted by the
petitioner was dismissed concurrently, under Order XVII rule 3, the Civil Procedure Code,
1908 ("the Code").
2. Messrs Mujeeb Ahmed Hashmi and Sha rjeel Haider, Advocates, representing the
petitioner, state that, suit instituted by the petitioner was fixed on 24th May, 2021 for filing list of witnesses of the petitioner, whereas on such date, the trial Court dismissed the suit
under Order XVII, Rule 3, the Code. They state that the date set for filing list of witnesses
cannot be construed as "date of hearing", therefore, the provision of Order XVII, Rule 3, the
Code was not attracted. They placed reliance on the cases of Rehmatullah and 2 others v. La l
Muhammad, reported in PLD 1986 Quetta 121 and Mst. Gul Bibi v. Hamesh Gul and another, reported in PLD 1976 Pesh. 108.
3. Messrs Manzoor Shah and Mubashar Hassan, Advocates, representing the
respondents Nos. 1 to 3, 6 and 7, state that the courts below have rightly non- suited the
petitioner and placed reliance on the case of Moon Enterprises CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited, reported in 2020 SCMR 300.
4. I have heard the arguments and gone through the record of the case. The impugned
order was passed by the trial Court under Order XVII Rule 3, the Code, which reads:
"3. Court may proceed notwithstanding either party fails to produce 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, notwiths tanding such default, proceed to decide the suit forthwith."
(Emphasis supplied)
5. In the rule, expression "proceed to decide" means decision of the suit on merits for, in
such a case, it is mandatory for the Court to have examined the evidence brought on the
record. However, where there is no material on record, the Court should proceed under Rule
2 and not Rule 3 of Order XVII, of the Code i.e. either adjourn the suit or to act under Order IX, the Code.
6. In the instant case, the trial Court adjourned t he case for list of witnesses, however,
the petitioner failed to submit his list of witnesses on several dates. There was no material before the trial Court for decision of the suit on merits, hence resort to Order XVII, Rule 3, the Code by the trial Court was not warranted. The trial Court at the most, could either
adjourn the suit or to dismiss it for non prosecution. Though, the impugned order transpires that suit was dismissed under Order XVII, Rule 3, of the Code, but since, the impugned order
is not d ecision on merits (for want of evidence), therefore, it can safely be termed as an order
under Rule 2 of Order XVII of the Code. The remedy for setting aside such an order lies in
Order IX, Rule 9, the Code and as such is not appealable under section 96, t he Code. By
mere, mentioning of words "Order XVII, Rule 3" in the impugned order or by drawing a
decree, does not make it an order under Order XVII, Rule 3, the Code. It is a settled proposition that substance of an order/judgment is to be looked into and not its format. For
all intents and purposes, the impugned order passed by the trial Court falls in the category of
Order XVII, Rule 2 read with Order IX, Rule 8, the Code. Such an order can be recalled under Order IX, Rule 9 read with Order XLVII, Rule 1, the Code. Filing an appeal against
such an order is not permissible under section 96, the Code. The appellate Court has illegally exercised appellate jurisdiction for, the order of the trial Court was not an appealable order either under section 96 or Order XLIII, Rule 1, the Code. The appellate Court also failed to
convert the appeal into a revision petition as in exceptional circumstance, a revision may lie
against an order which may fall in the category of Order IX rule 8, the Code. The appellate Court has also vested with revisional jurisdiction under section 115 (2), the Code.
7. For the above mentioned reasons, and in the exercise of revisional jurisdiction
conferred upon this Court, the impugned order passed by the trial Court is converted into an order under Order XVII, Rule 2, the Code. The petitioner is at liberty to apply the trial Court
for restoration of his suit under Order IX, Rule 9 read with Order XLVII, Rule 1 and section 151, C.P.C. As the date set for filing of list of witnesses was not a date of "hearing" as such, the impugned dismissal order of the trial Court is a void order. The petitioner may apply for restoration of his suit with a time period prescribed by Article 181, Schedule -I, the
Limitation Act, 1908. I am fortified by the cas e-law, Rehmatullah and 2 others v. Lal
Muhammad reported in PLD 1986 Quetta 121.
8. I have gone through the judgment of the Hon'ble Supreme Court of Pakistan, bearing
title Moon Enterprises CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited
through General Manager, Rawalpindi and another, published in 2020 SCMR 300. There is
no cavil with the proposition laid down by the Hon'ble Supreme Court of Pakistan in the said case law, however, the facts of this case are quite distinguishable.
As a result , the revision petition is partly allowed. The impugned judgment and
decree dated 07th September, 2021 passed by the court of Additional District Judge -I, Quetta
in Civil Appeal No. 44/2021 is set aside, resultantly, the appeal preferred by the petitioner before the appellate Court stands dismissed, being not an appealable order. However, the impugned order and decree dated 24th May, 2021, passed by the trial Court in Civil Suit No. 95/2020 is converted into an order under Order IX, Rule 8 read with Order X VII, Rule 2, the
Code.
Parties shall bear their own costs.
IH/56/Bal. Petition 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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