SHAHID HUSSAIN vs LAHORE MUNICIPAL CORPORATION

ORDER

ASLAM RIAZ HUSSAIN, J. This petition is directed against the order of Lahore High Court, dated 6-12- 1980, dismissing petitioner's Civil Revision.

2. The facts giving rise to the petition are briefly, that Shahid Hussain, petitioner filed a suit for permanent injunction restraining the respondent from demolishing his workshop situated on the land of the respondent. The suit was fixed for production of evidence on four different dates but the petitioner failed to produce the evidence. Therefore, on 6-2-1975, the learned trial Court dismissed the suit under Order XVII, rule 3 of the C.P.C., for want of evidence.

3. Aggrieved by the dimissal order, the petitioner filed an appeal before the District Judge. But it was dismissed by the learned Additional District Judge on 12-11-1980, on the ground that only the judgment of the trial Court had been impugned and further that since a certified copy of the decree passed by the learned trial Court had not been filed as required by Order XLI, rule 1, C. P. C., the appeal was not competent.

4. The petitioner then filed a Revision petition against the judgment of the learned Additional District Judge. The High Court dismissed the Revision and upheld the judgment of the Additional District Judge holding that in the absence of a copy of the decree passed by the trial Court, the appeal before the District Judge had not been' competently filed and had therefore been rightly dismissed by the first appellate Court.

5. .The main contention raised before us by the petitioner's counsel was that since the trial Court had merely passed an order dismissing the suit under Order XVII, rule 3, C.P.C:, there was no judgment on which decree could have been based, and as such his appeal before the District Judge was competent, even without a copy of the decree. He also urged that the learned trial Court had erred in dismissing his suit under Order XVII, rule 3, C. P. C., it should have proceeded to decide the case on the evidence already on the record rather than dismissing it forth--with.

6. As to the last mentioned contention it was due to the persistent failure of the plaintiff (petitioner herein) to produce his evidence that the trial Court was compelled to dismiss the suit under Order XVII, rule 3, C.P.C.

But the main question before us is whether the learned High Court was correct in holding that the appeal as filed by the petitioner before the District Judge, without filing a certified copy of the decree-sheet, was even competent. In this respect, the learned counsel urged that since the order of the learned District Judge was merely an order and not a judgment, it was not necessary to file a copy of the decree-sheet alongwith the grounds of appeal.

7. Order XVII, rule 3 of the C. P. C., reads as follows:- "Court may proceed notwithstanding either party fails to produce evidence, etc. 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, notwith--standing such default, proceed to decide the suit forthwith."

1t is clear from the wording of the said rule that on the failure of a party to produce its evidence or to do any other act necessary for the purpose o the case, for which time had been allowed to him, the Court shall proceed to decide the suit forthwith. As such an order dismissing the suit under ,9 Order XVII, rule 3, C.P.C., would be deemed to be a judgment on merits, unlike an order under rule 2 of the said Order. Reference may be made to Rahim Bux and 2 others v. Mst. Nazir Khanum and another (1980 CLC 595and Nlla v Punun (AIR 1936 Lah. 385). This would, therefore, operate as res judicata between the parties barring the maintainability of the second suit on the same issue, Har Dayal v. Ram Golam AIR 1944 Oudh 39- AIR 1936 Lah. 385). As held by Shadi Lal, C. J., in Gal Chand v. Kaka Ram (AIR 1927 Lab. 562remedy against such an order would be an appeal against the decree. This view is clearly supported by the language of rule 3, of Orde XVII read with the definition of `Decree' in section 2(2), C.P.C. Under Orde D XVII, rule 3, C. P. C., the Court is required, on the failure of the party to do the needful, to proceed to decide the suit forthwith. As such, the decision is obviously an adjudication in which the Court conclusively determines the rights of the parties with regard to matters in controversy in the suit between the parties and that is why it has been held to operate as res judicata between them, barring any other suit relating to the same controversy.

8. It may be mentioned here that a look at the copy of the order passed by the learned trial Court, would show that it had, in fact, drawn up the decree and had obviously treated the order of dismissal as a final decision of the case.

9. Even otherwise the contention of the learned counsel is not tenable. If, as contended by him; the trial Court had not delivered a judgment and had merely passed an order which was not to be followed by a decree, then it would either be an order appealable under Order XLIII or an order against which revision would lie under section 115, C. P. C. But a reading of Order XLIII, rule 1, C.P.C., shows that no appeal is provided therein against an order under Order XVII, rule 3, C.P.C., and therefore, the peti--tioner's appeal against the order in question before the learned District Judge was evidently not competent. Conversely, if it was an order against which only a revision lay under section 115, C. P. C., then an appeal against it before the District Judge was not competent at all.

10. In view of the above discussion we find that the learned Judge was justified in dismissing the appeal on the ground that it was not accom--panied by copy of the decree-sheet. This petition is, therefore, dismissed as being without any merit.