PAKISTAN BURMAH SHELL LTD. vs TARIQ BROTHER

ORDER

IHSAN-UL-HAQ CHAUDHRY, J.--Appellant's suit for the recovery of Rs.3,97,203 against the respondent was fixed for plaintiff's evidence before the trial Court on 24-11-1993 and on its failure to produce the same on the said date, trial Court closed its evidence and dismissed the suit on the same day for lack of evidence, leaving the parties to bear their own costs.

2. Learned counsel for the appellant contends that the plaintiff's evidence could not be closed legally on the said date because on the preceding date of hearing i.e. 20th of October, 1993, the learned Presiding Officer was on leave and the suit was not adjourned at the instance of the appellant/plaintiff and as such, the provisions of Order XVII, Rule 3, C.P.C. Could not be invoked on the next date of hearing and trial Court ought to have given another opportunity to the plaintiff to produce evidence. Reliance is placed on Malik Nayyar Hussain v. Muhammad Saeed and others (1993 M LD 1788), wherein, following the firmly settled law, it has been held that the "provisions of Order XVII, rule 3, C.P.C. Could not be invoked on a date which was not fixed on the request of the defaulting party.

3. On the other hand, learned counsel for the respondent argued that the appellant was allowed number of opportunities, but it failed to avail the same. Therefore, the evidence was rightly closed.

4. It is evident from the record that the suit was fixed on 20-10-1993 for recording of the plaintiff's evidence and on the said date, the Presiding Officer was on leave and for this reason, the case was adjourned for 24-11-1993 and the adjournment was not made on the request of the plaintiff. In these circumstances, we are of the opinion that the trial Court ought to have given another opportunity to the plaintiff to prove its case. Even otherwise, the law favours decision on merits.

5. For the foregoing reasons, we accept the appeal by setting aside the judgment and decree dated 24-11-1993 and remand the case to the trial Court for its decision on merits in accordance with law with a direction that trial Court shall proceed with the suit on day to day basis and decide it positively before 28-2-1995. However, there shall be no order as to costs. Since the appeal has been accepted on a point of law and no determination of right of the parties has been made, the appellant is hereby granted certificate as envisaged by section 13 of the Court Fees Act for the refund of the court-fee affixed on the memo of appeal.