2012 Y L R 2658 [Lahore]

Before Muhammad Ameer Bhatti, J

MUHAMMAD JAMIL and others---Petitioners

versus

Mst. INAYAT BEGUM---Respondent

Civil Revision No.985 of 2003, heard on 3rd September, 2012.

(a) Civil Procedure Code (V of 1908)---

----O.XVII, Rr.2 & 3---Closure of right of a party to lead evidence---Scope---Such right could
not be closed unless established on record that such party had obtained the preceding date---
Where adjournment of proceedings on previous date was in routine manner without request of
either party, then provision of O.XVII, R.3, C.P.C. would not apply---Parties ought to be
provided an adequate opportunity in order to save their valuable rights from being trampled on
technical grounds.

Sheikh Khurshid Mehboob Alam v. Mirza Hashim Baig and another 2012 SCMR 361;
Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PLD 1971 SC 434 and Lal v.
Ghulam Mohd. and others PLD 1975 Lah. 385 ref.

(b) Civil Procedure Code (V of 1908)---

----Ss.114, 115, O. IX, Rr. 3, 4, O. XVII, Rr.2, 3 & XLVII, R.1---Pendency of application for
restoration of suit dismissed for non-prosecution---Non-appearance of both the parties on
adjourned date of hearing fixed for applicant's evidence---Dismissal of such application by Trial
Court for non-prosecution and non-production of evidence---Application for restoration of such
dismissed application filed on the same day, which was dismissed by Trial Court for not being
maintainable---Applicant's plea that his application for restoration of such dismissed application
was maintainable under O.IX, R.4, C.P.C. as adjourned date of hearing had not been granted on
previous date at his request---Respondent's plea that word "or" as used in O.XVII, R.2, C.P.C.
would amount to "and" empowering court to dismiss suit on grounds of non-prosecution and
non-production of evidence simultaneously, thus, impugned order was valid---Validity--While
exercising powers under O.XVII, R.3, C.P.C. record must show that preceding date had been
obtained by defaulting party, otherwise his right to lead evidence could not be closed---Power of
court to "make such other order as it thinks fit" would relate to a case in which some material in
form of evidence was available on record---In absence of plaintiff and any evidence on record,
provisions of O.XVII, R.3, C.P.C. would not apply, rather R.2 thereof would be attracted and
must be applied by court---Record showed that present case had not been adjourned at
applicant's request on previous date---Parties ought to be provided adequate opportunity in order
to save their valuable rights for being trampled on technical grounds---Applicant had rightly
made application for restoration under O.IX, C.P.C.---Trial Court had passed impugned order by
applying wrong provisions of law, thus, committed an illegality apparent on face of record,
which could be corrected in exercise of power provided under O.XLVII, R.1, C.P.C.---High
Court set aside impugned order and directed Trial Court to decide such application on merits
within specified time.

Sheikh Khurshid Mehboob Alam v. Mirza Hashim Baig and another 2012 SCMR 361;
Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PLD 1971 SC 434; Lal v.
Ghulam Mohd. and others PLD 1975 Lah. 385 and Shahid Hussain v. Lahore Municipal
Corporation PLD 1981 SC 474 ref.

Muhammad Haleem and others v. H.H. Muhammad Naim and others PLD 1969 SC 270
and Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296 rel.

(c) Civil Procedure Code (V of 1908)---

----O.XVII, Rr. 2 & 3---Non-appearance of parties on adjourned date of hearing---Powers of

court---Scope---Court in such case could dismiss suit either under O.IX, C.P.C. for non-
prosecution or under O.XVII, R.3, C.P.C. for non-compliance of its order, but could not exercise
both such powers simultaneously---Provision of O.XVII, R.3, C.P.C. would not apply where
neither plaintiff was present nor was any evidence available on record---Principles.

The court by Order XVII, Rule 2, C.P.C. has been empowered to exercise the jurisdiction
either under Order IX, C.P.C. or any other provision of law, so the court has been restrained to
exercise the powers as provided under Order IX, C.P.C. and vis-à-vis under Order XVII, Rule 3,
C.P.C., as it conflicts the jurisdiction of the court and the scheme of law and in both the cases
different and independent remedies have been provided under the law. When the court exercises
the power under Order IX, C.P.C. and dismisses the suit for non-prosecution, then the same
could has the jurisdiction to recall it under Order IX, Rule 4, C.P.C., whereas if the suit has been
dismissed for the non-compliance for the order of the court, the provision of Order XVII, Rule 3,
C.P.C. would come in motion and is deemed to be a judgment on merits and remedy against the
said judgment is an appeal against the decree. Therefore, the law has specifically barred the
courts to exercise both the powers simultaneously.

The legislature has deliberately made reference to Order IX, C.P.C. and not to Rule 3 of
Order XVII, C.P.C., and power of the court to pass such other order as it deems fit is relatable to
the case in which some material on record is avail-able in the form of evidence, Rule 3 of
O.XVII, C.P.C. should have been deserted by falling back to Order IX, C.P.C.

In absence of the plaintiff and any evidence on the file, provisions of Order XVII,
Rule 3, C.P.C. are inapplicable and instead Rule 2 thereof is attracted and has to be applied by
the court.

Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474 ref.

Muhammad Haleem and others v. H.H. Muhammad Naim and others PLD 1969 SC 270
and Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296 rel.

(d) Administration of justice---

----Act of court can prejudice none.

(e) Civil Procedure Code (V of 1908)---

----S.114 & O. XLVII, R.1---Illegality/error floating on surface of record---Duty of court---

Scope---Court in such case would be legally obliged to correct the same in exercise of its power
under O.XLVII, R.1, C.P.C.---Principles.
 Saleem Anwar Khan for Petitioner.

Muhammad Ilyas Khan for Respondent.

Date of hearing: 3rd September, 2012.

JUDGMENT

MUHAMMAD AMEER BHATTI, J.---This revision petition is directed against the

order dated 22-2-2003 passed by the learned trial Court, whereby the application for restoration
of the suit (dismissed for non-prosecution as well as for non-production of evidence) was
dismissed on the ground that the suit of the petitioner was dismissed for non-production of
evidence, therefore, the order impugned was appealable and the learned trial Court had no
jurisdiction to review its order and the application for restoration of petition being not
maintainable, was dismissed.

The brief facts of the case are that the suit for specific performance filed by the petitioner
was dismissed for non- prosecution vide order dated 24-5-1999 and application for restoration
dated 1-6-1999 was also dismissed for non-prosecution as well as for non-production of evidence
vide order dated 25-2-2000. Subsequently, the petitioner moved an application for restoration of
the said application dated 25-3-2000 on the same day but this application was dismissed on
22-2-2003 on the point of non-maintainability.

3. The learned counsel for the petitioner contends that the order impugned on the face of it
is not tenable in the eye of law inasmuch as the Court was to dismiss the application of the
petitioner either for non-prosecution or for non-production of evidence, therefore, both the
powers could not be exercised simultaneously, as it is impermissible under Order XVII, Rule 2,
C.P.C. Therefore, application under Order IX, Rule 4 C.P.C. for the restoration of the application
was in consonance with the provision of law and the learned trial Court was duty bound to
restore the application of the petitioner. Hence by not exercising the power, the learned trial
Court has committed material illegality and irregularity rendering the impugned' order invalid.
He further contends that the suit of the petitioner could not be dismissed for non-production of
evidence, as the preceding date was not granted on the request of the petitioner, therefore, the
provision under Order XVII, Rule 3, C.P.C. was not to be exercised by the learned trial Court.
Reliance is placed on Sheikh Khurshid Mehboob Alam v. Mirza Hashim Baig and another (2012
SCMR 361), Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (PLD 1971 SC
434), Lal v. Ghulam Mohd. and others PLD 1975 Lah. 385.

4. On the other hand learned counsel for the respondent contends that the Order XVII, Rule
2, C.P.C. empowers the Court to exercise the jurisdiction under Order IX and also any other
relevant provision of law, therefore, the learned trial Court has not committed any illegality and
irregularity while exercising both the powers, as it was available to the learned trial Court to
dismiss the suit for non-prosecution as well as for non-production of evidence. The learned
counsel for the respondent further contends that the word "or" used in Order XVII, Rule 2,
C.P.C. amounts to 'and' therefore, both the powers could have been exercised by the Court,
hence the order is well-reasoned and in accordance with law. Reliance is placed on Shahid
Hussain v. Lahore Municipal Corporation (PLD 1981 SC 474), Muhammad Haleem and others
v. H.H. Muhammad Naim and others (PLD 1969 SC 270).

5. I have considered the arguments of the learned counsel for the parties and gone through
the record of the case as well as the relevant provisions of law.

6. It is well-settled law that while exercising the provision under Order XVII Rule 3, C.P.C.,
it has to be established from the record that the preceding date has been obtained by such party
otherwise his right to lead evidence could not be closed under Order XVII Rule 3, C.P.C. and the
perusal of the order dated 17-2-2000 reveals that the case was not adjourned on the request of the
learned counsel for the petitioner. It was adjourned in a routine manner without the request of
either party, therefore, the learned trial Court had exercised the power under Order XVII, Rule 2,
C.P.C. in stricto sensu fashion which is not permissible under the law as adequate opportunity
ought to have been provided to the parties, so that the valuable rights of the parties are not
trampled on technical grounds.

7. Even otherwise, Order XVII, Rule 2, C.P.C. is reproduced hereunder:--

"O.XVII: R.2 Procedure if parties fail to appear on day fixed.---Where, on any day to
which the hearing of the suit is adjourned, the parties or any of them fail to appear the
Court may proceed to dispose of the suit in one of the modes directed in that behalf by
Order IX or make such other order as it thinks fit."
The Court has been empowered to exercise the jurisdiction either under Order IX or any other
provision of law, so the Court has been restrained to exercise the power as provided under Order
IX and vis-a-vis under Order XVII Rule 3 C.P.C., as it conflicts the jurisdiction of the Court and
the scheme of law and in both the cases different and independent remedies have been provided
under the law. When the Court exercises the power under Order IX and dismisses the suit for
non-prosecution, then the same Court has the jurisdiction to recall it under Order IX Rule 4
C.P.C., whereas, if the suit has been dismissed for the non-compliance of .the order of the Court,
the provision of Order XVII Rule 3 C.P.C. would come in motion and is deemed to be a
judgment on merits and remedy against the said judgment is an appeal against the decree.
Therefore, the law has specifically barred the Courts to exercise both the powers simultaneously,
hence the order impugned cannot be lawfully maintained.

8. The legislature has deliberately made the reference to Order IX and not to Rule 3 of
Order XVII C.P.C. and power of the Court to pass such other order as it deems fit is relatable to
the case in which some material on record is available in the form of evidence, Rule 3 should
have been deserted by falling back to Order IX. Reliance is placed on Syed Haji Abdul Wahid
and another v. Syed Sirajuddin (1998 SCMR 2296) and Muhammad Haleem and others v. H.
H. Muhammad Naim and others (PLD 1969 SC 270). Therefore, it is concluded that in absence
of the petitioners and any evidence on the file, provisions of Order XVII Rule 3, C.P.C. were
inapplicable and instead Rule 2 of the same order was attracted, thus, had to be applied by the
Courts below.

9. Since the error was committed by the learned trial Court, the petitioner had the option to
get the order set aside according to his understanding, as it is settled law that the act of the Court
can prejudice none. Therefore, it is held that the petitioners rightly moved their application under
Order IX, C.P.C. for the restoration of their suit dismissed for non-prosecution.

10. It is also noticed that the petitioner has specifically mentioned in his application for
restoration of suit along with enabling provisions of review of the order and the Court can review
his order where the illegality is floating on the surface of the record---even if the appeal is
provided against the said order/judgment. Since the Court has committed the lapse, it was
obligatory for the same Court to exercise its power provided under Order XLVII, Rule 1, C.P.C.
to correct the error apparent on record.

11. Considering the facts and relevant provisions of law in totality, this Court comes to this
conclusion that the order impugned apparently seems to have been passed by exercising the
wrong provision of law, therefore, the same is unsustainable in the eye of law. Consequently, the
same is set aside with the result that the application for restoration of suit of the petitioner shall
be deemed to be pending before the learned trial Court. Parties are directed to appear before the
learned Senior Civil Judge, Gujranwala on 27-9-2012, who shall take on this matter either
himself or entrust it to any learned Civil Judge for adjudication on merits and decide the same
within a period of two months from the order of this Court.

12. This petition stands accepted in the foregoing terms.

SAK/M-289/L Revision accepted.