2012 Y L R 2658
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
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.
