TAHIR ASLAM KHAN Versus MERAJ DIN

The respondent No.1 filed a suit for possession on 29-2‑1984, against the petitioners and. respondent No.2. The suit was contested. Following issues were framed:‑‑

(1) Whether the suit is not maintainable? OPD.

(2) Whether the suit is insufficiently valued for the purposes of court fee and jurisdiction. If so the correct valuation? OPD.

(3) Whether the plaintiff is estopped by his words and conduct to bring the instant suit? OPD.

(4) Whether the suit is bad for misjoinder of parties? If so its effect?

(5) Whether the plaintiff is the owner of the property in dispute and the defendants are in possession as lessee? If so its effect? OPP.

(6) Relief.

On 25‑3‑1986 evidence of respondent No.1 was absent and the learned trial Court proceeded to dismiss the suit stating that the suit is being dismissed under Order XVII Rule 3, C.P.C. with costs. Feeling aggrieved respondent No. 1 filed a first appeal which was heard by a learned Additional District Judge, Lahore who proceeded to allow the same, to set aside the judgment and decree dated 25‑3‑1986 and to remand back the case to the learned trial Court for deciding it on merits vide order dated 13‑4‑1987.

2. Learned counsel contends that the learned Additional District Judge has no jurisdiction to condone the lapse on the part of respondent No.1 to produce. evidence on 25‑3‑1986 and to order a fresh trial. No one has turned up for the respondents.

3. I have gone through the record. I found that the petitioners appeared on 14‑1‑1985. They were asked to file a written statement on 12‑2‑1985. On this date it was adjourned to 20‑3‑1985. It was then again adjourned to 24‑4‑1985 when some of the defendants filed their written statement. It was again adjourned to 25‑5‑1985 when the pleadings were complete. Issues were framed on 8‑6‑1985. The case was adjourned for evidence of respondent No. i to 7‑1‑1986. On this date evidence was absent and a last opportunity was given for 25‑3‑1986. On this date learned counsel for respondent No.1 explained that he has lost his brief and his Clerk has gone for Haj and respondent No. l as well as the witnesses are absent. He prayed for grant of adjournment. The learned trial Court refused to grant adjournment and proceeded to dismiss the suit observing as under:‑‑

URDU TYPING 1634

It has been very correctly found by the learned Additional District Judge that the learned trial Court has not recorded any judgment at all. I find that the learned trial Court has acted in a manner not warranted by law. Order XVII, Rule 3, C.P.C. does not at all provide that in case evidence is absent on a date then the suit is to be decided against the party by way of penalty. On the other hand, Order XVII, Rule 3, C.P.C. states that where the evidence is absent, then the Court is to proceed with the suit. The said Order, therefore, is not only illegal but also without lawful authority and was rightly held to be so by the learned Additional District Judge.

4. Even otherwise, I feel that the learned trial Court had rather proceeded in a hurry. I have already noted above that four adjournments were granted to the petitioners and respondent No.2 to file written statement but the learned trial Court gathered speed after framing of the issues and proceeded to non‑suit the respondent No. l on the said date. The contents of the order, dated 25‑3‑1986 do not spell out any fault attributable to respondent as such to be visited with such a harsh penalty and that too not countenanced by law.

5. There is no force in this civil revision which is accordingly dismissed leaving the parties to bear their own costs.

H.B.T./T‑41/L

Revision dismissed.