Non-appearance of parties on adjourned date of hearing

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.