Mst. RAMZAN BIBI And 14 Others vs AHMAD DIN
This matter arises from a petition for leave to appeal filed by the plaintiff side, including minors, against the dismissal of their civil revision by the High Court regarding a suit for possession and injunction. The trial court had dismissed the suit under Order 17, Rule 3 of the Code of Civil Procedure 1908 after the petitioners failed to produce evidence and their counsel expressed helplessness due to their absence. The core legal questions involve whether the trial court had the discretion to apply such a punitive provision or adjourn the matter, whether that discretion was properly exercised with regard to the interests of minors, and whether the suit could be dismissed under Order 17, Rule 3, C.P.C. where ownership averments were uncontested and the respondent relied on adverse possession. The Supreme Court granted leave to appeal to examine these questions concerning judicial discretion and the protection of minors' interests.
- Whether the Court had discretion to apply Order 17, Rule 3, C.P.C., a punitive provision or to adjourn the case or pass any order other than punitive?
- If the Court had the required discretion, whether it has been properly exercised, particularly whether the interest of the minors was duly safeguarded?
- Whether, in view of the clear averments in the plaint regarding the record of rights showing petitioners' ownership and the respondent's reliance on adverse possession, the suit could be dismissed under Order 17, Rule 3, C.P.C.?
- Order XVII Rule 3, Code of Civil Procedure 1908
ORDER
1. MUHAMMAD AFZAL ZULLAH, J.---Leave to appeal has been sought by the plaintiff side in a suit for possession and injunction; against the dismissal of their Civil Revision, by the High Court.
2. The petitioners amongst whom there are minors failed in the trial Court on account of the application of the punitive provisions contained under Order 17, Rule 3, C.P.C. It was applied because on the relevant final date of hearing the learned counsel for the petitioners appeared and made a statement that the petitioners being absent he was helpless and the Court might pass any order it deemed lit. As the petitioners had been afforded several opportunities to produce evidence, this fact and the statement made by the learned counsel, weighed with the learned trial Court and it dismissed the suit by applying Rule 3 of Order 17, C.P.C.
3. After hearing the learned counsel we consider it a fit case for grant of leave to appeal, inter alia, to examine: (i), whether, the Court had discretion to apply Order 17, Rule 3, C.P.C., a punitive provision or to adjourn the case or pass any order other than punitive; (ii), if the Court had the required discretion; whether, it has been properly exercised -- particularly whether the interest of the minors was duly safeguarded; (iii) whether, in view of the clear averments in the plaint regarding the record of rights showing petitioners' ownership; and, the respondent not having denied the existence of such record of rights and their effect and thus having relied on his adverse possession in this behalf, could the suit be dismissed under Order 17, Rule 3, C.P.C.; (iv) or, it should have been decreed on the basis that the original ownership of the petitioners' side not having been seriously contested the respondent had failed, in the facts and circumstances of this case, to establish the plea of adverse possession; and (v), other related questions. Leave to appeal, accordingly, is granted.
4. Security Rs.5.000 No alienation of the property in question in the meanwhile.