Malik MUHAMMAD SULEMAN vs MUHAMMAD SHABBIR AKHTAR

' This order will dispose of all the above-captioned revision petitions which involve similar legal question for determination.

2. A suit for recovery was filed by the respondent against the petitioner/defendant. The suit was at the stage of evidence. The plaintiff/respondent was given last opportunity for leading evidence on 22-2-1984 vide order, dated 6-12-1983. On that adjourned date, the respondent/plaintiff did not produce the evidence nor did he appear in the Court, whereupon, the suit was dismissed for non- proof after closing his evidence under Order XVII, rule 3, C.P.C. The respondent/plaintiff filed a civil appeal against the aforesaid order, whereby, it was contended that the provisions contained in Order XVII, rule 3, C.P.C. Were not attracted as the adjourned date was not given at the request of the party concerned. It was also contended that since nobody was present for the plaintiff, therefore, the suit should have been dismissed or adjourned under Order XVII, rule 2, C.P.C. But the plaintiff could not be non-suited under Order XVII, rule 3, C.P.C. The learned Appellate Court agreeing with the above contention accepted the appeal, set aside the impugned judgment and decree dated 22-2-1984 and remanded the case to the learned trial Court to proceed with the same, according to law. The present revision petition was filed against the order of the learned Appellate Court aforementioned.

3. It was contended in the revision petition that absence of the plaintiff in the Court below was intentional and that instead of moving a petition under Order XVII, rule 2, read with Order IX, rule 9, C.P.C., the plaintiff filed an appeal which was not competent. It was, therefore, contended that the appeal being incompetent was liable to be dismissed.

4. I have heard the learned counsel for the petitioner although nobody turned up from the .Respondent's side despite of service. It is true that the date, when the suit was dismissed was, not given at the request of the party concerned nor there was any evidence on record so as to enable the Court to decide the case on merits. In such a situation, it is rightly contended that the suit should have been dismissed under Order IX, rule 8, C.P.C. Or under Order XVII, rule 2, C.P.C. Or the same should have been adjourned for further proceedings giving another opportunity to the plaintiff to lead the evidence. However, the learned trial Court misapplying the provisions of law under Order XVII, rule 3, C.P.C. Closed the evidence and dismissed the suit for non-production of evidence. There is no doubt that the provisions of Order XVII, rule 3, C.P.C. Were wrongly applied but since the decree had been passed dismissing the suit under Order XVII, rule 3, C.P.C., therefore, the appropriate remedy for the aggrieved party was to file an appeal instead of moving an application under Order IX, rule 9, C.P.C. Or under Order XVII, rule 2, C.P.C. For setting aside the impugned order.

Had any such application been moved, the other party would have successfully raised the objection that since the suit was dismissed for non-production of evidence, therefore, a decree of dismissal of suit having been passed, the matter was appealable. In such a situation, the competency of the appeal cannot be challenged particularly when the misapplication of Order XVII, rule 3, C.P.C. Could only be set aside and a corrective order could be made by remanding the case in order to open up the case for the parties so that their dispute may be settled on merits. The hypertechnicalities of law cannot be allowed to throttle the true facts nor those can be used as guillotine to non-suit a party to deprive it of its valuable legal rights for the adjudication of matters on merits. In such a situation, the corrective jurisdiction always vests in the Appellate Court which can undo any wrong order made by a Court subordinate to it. Since the order in question was utterly bad in eyes of law and having been passed under misconceived interpretation of legal revisions, therefore, it cannot be allowed at the party concerned be judicially rejudiced. Likewise, the matter of limitation as correctly dealt with by the learned lower court by stating clear reasons therein for high there was no answer even at the visional stage before this Court.

5. In view of my above discussion, I do not find any patent or latent illegality with the impugned order passed by the learned Additional District Judge while accepting the appeal and remanding the case to the trial court for trial afresh. The revision petitions being meritsless are dismissed.