PLJ 2025 Quetta 7
Present : ROZI KHAN BARRECH , J.
MARYAM and others --Petitioners
versus
NAZUK and others --Respondents
C.R. No. (T) 44 of 2017, decided on 20.3.2023.
Civil Procedure Code, 1908 (V of 1908) --
----O.XVII, Rr. 3(1)(2)-- Dismissal of suit due to non- prosecution-- Duty of trial Court --Right of
petitioners --Adjournment was made on last date of hearing on note of reader of trial Court --
Appeal --Dismissed --Whether case adjourned by note of reader of Court could be termed as date
of hearing-- Challenge to --The trial Court had been oblivious to duty enjoined upon him by
failing to admit right of petitioners to appear in witness box and had thereby erred in law by
omitting to exercise its jurisdiction, which amounts to blatantly frustrating legal right of petitioners --It has been a consistent view of superior Courts that dismissal of suit in default for
non-appearance on date, not given by Presiding Officer but by Reader of Court, could not be
treated to be a date of hearing within meaning of Order IX Rule 8 CPC --Order impugned was
void ab- initio and without jurisdiction --High Court did not find an indication in impugned order
and decree of trial Court --The trial Court had no jurisdiction to decide suit under Order XVII
Rule 3 CPC; trial Court should had proceeded with suit forthwith under Rule 1 (3) CPC and not
proceeded to decide suit forthwith under Rule 3 CPC --The valuable right of petitioners was
involved in suit, which could not be allowed to be defeated in law on a mere technical point as Courts are to avoid technicalities in deciding disputes between parties and adhere to merits of
case-- Petition accepted. [Pp. 9 & 12] A, B, C, D & E
2016 CLC 1490 ref.
Messrs Khalil Ahmed Lehri and Abid Umer , Advocates for Petitioners.
Mr. Nazimuddin, Advocate for Respondent Nos. 1 to 4.
Mr. Abdul Latif , Advocate for Respondent Nos. 5, 8 to 28, 30, and 31.
Mr. Sher Nawaz , State Counsel for Respondent/State.
Date of hearing: 10.3.2023.
J
UDGMENT
The petitioners/plaintiffs assailed the order and decree dated 17.04.2017 (hereinafter “the
impugned order” ) passed by learned Qazi Pasni, (hereinafter “the trial Court” ) whereby the
suit of the petitioners/plaintiffs was dismissed in non -prosecution and non -interest and the order
dated 25.09.2017 (hereinafter “the impugned order” ) passed by learned Majlis -e-Shoora,
Gwadar (hereinafter “the appellate Court”), whereby the appeal filed by the petitioners/
plaintiffs was also dismissed.
2. Concise facts of the case are that the petitioners/plaintiffs filed a suit for Cancellation of Mutation Entries, Declaration, Temporary and Permanent Injunction against the respondents/
defendants before the trial Court.
3. The respondents/defendants resisted the suit, while submitting their written statements; they
controverted the assertions contained in the plaint.
4. The trial Court framed issues, and the petitioners/plaintiffs filed a list of witnesses, whereafter
failed to produce evidence as such on 17.04.2017, the trial Court dismissed the suit in non-prosecution and non- interest under Order XVII Rule 3 of the Code of Civil Procedure (V 1908)
(hereinafter referred to as “CPC”) .
5. Being aggrieved from the impugned order and decree dated 17.04.2017, the petitioners filed
an appeal before the appellate Court, and the same was dismissed on 25.09.2017, whereafter, the instant petition was filed.
6. I have heard the learned counsel of the parties and perused the material available on record.
7. The suit initiated by the petitioners was dismissed by the trial Court vide order and decree
dated 17.04.2017 under Order XVII Rule 3 CPC for non- production of evidence despite availing
numerous opportunities as is apparent from the order and decree dated 17.04.2017.
8. During arguments, it was noticed by me that the petitioners although failed to produce the
evidence; yet to my dismay, the trial Court ought to have offered them an opportunity to testify
before the Court while closing their right to adduce remaining evidence which legal obligation had not been fulfilled by not affording such opportunity before closing their evidence. It is the unbeatable right of a party present before the Court to make a statement to prove the contents of
his case. It is manifestly clear from the record that the petitioners have been deprived of their
fundamental rights.
9. It appears that the trial Court has been oblivious to the duty enjoined upon him by failing to admit the right of the petitioners to appear in the witness box and has thereby erred in law by
omitting to exercise its jurisdiction, which amounts to the blatantly frustrating legal right of the
petitioners.
10. Perusal of the record reveals that the case was fixed for evidence of the petitioners/plaintiffs on 13.03.2017 as per order sheets maintained by the trial Court. On the said date, counsel for the
petitioner Mr. Waseem Jan, Advocate, appeared before the trial Court, but the witnesses were not
produced and the matter was further fixed for 03.04.2017 and 10.04.2017, but in the meanwhile,
the presiding officer was transferred, therefore the case was adjourned through the note of the
Reader of the trial Court for 17.04.2017. On the said date, neither the petitioners nor their
counsel was present, therefore, the suit was dismissed for non- prosecution and non- interest.
11. The question which has cropped up before this Court is whether the case adjourned by the note of the Reader of the Court can be termed as a date of hearing? In this respect, it has been a
consistent view of the superior Courts that dismissal of the suit in default for non- appearance on
the date, not given by the Presiding Officer but by the Reader of the Court, could not be treated
to be a date of hearing within the meaning of Order IX Rule 8 CPC. To my mind, the said order
is void ab- initio and without jurisdiction.
12. Keeping in view the circumstances mentioned above, I have considered the legal aspect of
the impugned orders and decree in order to ascertain that whether the trial Court should have to proceed under Order XVII Rule 2, Rule 3 CPC against the petitioners as at the previous date of
hearing either the matter was adjourned at the instance of the Court or the adjournment for the
date was sought at the behest of the petitioners. Before discussing all these points, I would like to reproduce the relevant provisions of Order XVII Rule 2 and 3 CPC.
Order XVII Rule 2.
“Procedure if parties fail to appear on day fixed.---Where, on any day to which the
hearing of the suit is adjourned, the parties or any of them fail to appear the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit”.
Order XVII Rule 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, notwithstanding such default, proceed to decide the suit forthwith”.
13. It appears that there is a distinction between Rule 2 and Rule 3 of Order XVII, CPC. 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 modes prescribed under Order IX, CPC or make such order as
think it fit. While under Rule 3 of Order XVII CPC when time is granted, if any party fails 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.
14. The procedure laid down under Rule 3 there must be an element. The adjournment must have
been on the instance of a party; secondly, there must be material on record for the Court to peruse and decide the case. For proceeding under Rule 3 of Order XVII CPC 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 in 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 procedure 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 words “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 provision 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 least 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.”
15. It is settled law that evidence of a party cannot be closed under Order XVII, Rule 3 CPC for
non-production of evidence where the case on the previous date was not adjourned at the request
of such party. For the application of Rule, 3 CPC, the following conditions must co- exist:-
i. Adjournment must have been granted to the party at his request;
ii. It must have been granted to it for the purposes mentioned in the rule 3.
iii. The party who has taken the time defaulted in doing the act - for which he took the time
from the Court;
iv. The party must be present or deemed to be present before the Court;
v. That there must be some material on record for decision of the case on merits and;
vi. That the Court must decide the suit forthwith that is within a reasonable time.
16. In the instant matter, I did not find an indication in the impugned order and decree of the trial
Court that the matter was adjourned on the previous date of hearing on the request of the petitioners/plaintiffs. It transpires that adjournment on the last date of hearing has been made on the note of the Reader of the trial Court, even otherwise if the trial Court has made an observation that it would be the last chance for recording evidence of the plaintiffs, Rule 3 of Order XVII CPC would be inapplicable as the adjournment could not be held to have been given to the party at his/their instance.
17. It is stated earlier that the Court has no jurisdiction to decide the suit under Order XVII Rule 3 CPC; the trial Court should have proceeded with the suit forthwith under Rule 1 (3) CPC and not proceeded to decide the suit forthwith under Rule 3 CPC. A slipshod order bereft of just and legal reasoning passed under Rule 3 CPC, dismissing suit without considering the material on record, would be beyond the scope of powers specified under Rule 3 CPC. Consequently, when the suit is at a preliminary stage, and there is not enough material on the record for a decision forthwith, the Court cannot dismiss the suit under such Rule 3 CPC. It is also pertinent that the valuable right of the petitioners/plaintiffs is involved in the suit, which cannot be allowed to be
defeated in law on a mere technical point as Courts are to avoid technicalities in deciding
disputes between the parties and adhere to the merits of the case.
18. In view of the above, the instant revision petition is accepted. The impugned orders and decrees dated 17.04.2017 and 25.09.2017, respectively passed by the trial, i.e . Qazi Pasni, and
appellate Court, i.e . Majlis -e-Shoora Gwadar are set aside, as a result whereof; the suit filed by
the petitioners/plaintiffs shall be re -adjudicated by the trial Court by granting two opportunities
to the petitioners/plaintiffs to produce their complete evidence subject to payment of the cost of Rs. 30,000/ - (Rupees Thirty Thousand Only) to be deposited in the account of
respondents/defendants within one month from the date of commencement of the proceedings by the trial Court and if they fail to produce the evidence on the date to be fixed by the trial Court, their right to produce evidence would be deemed to have been closed. The parties are directed to appear before the Court of Qazi Pasni on18.04.2023, who shall proceed with the matter in accordance with the law.
(Y.A.) Petition acceptedThis 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,
let us know.