RAJA FAYYAZ AHMED, C J.---As both the Appeals i,e, R.F.As. Nos.23/2004 and 24/2004 contain and involve identical facts and law points, therefore, both the appeals are decided by this common judgment. Orders and decrees dated 22-4-2004 separately passed by the learned Civil Judge, Lasbella at Hub and the subsequent orders dated 29-5-2004 passed by the same Court in Civil Suits No,29/2003 and 30/2003 whereby application filed by the appellant under Order IX, Rule 9, C.P.C. In both the suits seeking for restoration of suits were rejected, have been assailed in the above said Regular First Appeals filed under section 96, C.P.C..
2. The brief facts of the case pertaining to Civil Suit No,29/2003 (subject-matter of R.F.A.
No,24/2004); are that on 22-11-2004 appellant instituted civil suit for recovery of Rs,27,98,829.
Against respondents in the Court of Civil Judge, Lasbella at Hub registered on 3-12-2003 as Civil Suit No,29/2003 wherein the following reliefs were claimed:-- "(i) For a decree in favour of the plaintiff and against thousand eight hundred and twenty nine only) along with the future mark-up at the rate of 14% from the date of the institution of this suit till the payment is made to the plaintiff.
(ii) Personal decree against the defendant No,2 to 10 for recovery of the balance amount if any from their personal assets/properties.
(iii) An injunction restraining the defendants and/or anybody claiming through him in any manner from removing/disposing off the assets or the defendant No, 1.
(iv) Costs of the suit may graciously be awarded.
(v) Any other/further/additional relief or relief(s) which this honourable Court may deem fit and proper under the circumstances." The respondents No,1 to 3 by means of their joint written statement and rejoinder to application contested the suit on various grounds of law and facts and the application filed under Order XXXIX, Rules 1 and 2, C.P.C. Seeking for interim relief. Out of pleadings of the parties on 9-3-2004 issues were framed and the appellant/plaintiff was directed to file list of witnesses within seven days and the case was adjourned to 19-3-2004 for the evidence of the appellant/plaintiff. On this date the Junior Advocate for the plaintiff's counsel appeared, whereas; the defendants were represented by Mr. Muhammad Afzal Awan, Advocate, but no witness was produced on this date before the learned trial Court, however, the list of witnesses was filed and it was pointed out by the learned Junior Advocate to the Court that Miss Sumera Usto, Advocate failed to appear before the Court, as she was to appear before the High Court of Balochistan at Quetta, in support whereof copy of the notice in respect of the case fixed before the High Court was produced, accordingly request was made for adjournment for production of evidence, which was not opposed by the learned counsel for the respondents/defendants and the case was adjourned to 27-3-2004 for the evidence of the plaintiff, but on this date too no evidence was produced by the plaintiff and the learned trial Court adjourned the case to 6-4-2004 for the evidence of plaintiff subject to payment of cost of Rs,200., on which date the learned counsel for the plaintiff was not present, whereas; defendants were represented by Mr. Muhammad Afzal, Advocate present in Court. On this date, two witnesses Mushtaq Ahmed (In charge Billing Section) and Abdul Naeem Sheikh (Assistant Manager Finance) were present, but due to absence of the counsel for the plaintiff their statements could not be recorded, as such; the witnesses were bound down for 13-4-2004 and cost of Rs,300 was imposed on the plaintiff, as such; the case was adjourned to 13-4-2004 for the evidence ' of plaintiff. On this date again the learned counsel for the plaintiff was not present, whereas; the learned Advocate for the defendants was present before the Court when the case was taken up for hearing. The witnesses of the plaintiff despite having been bound down failed to appear before the Court on the aforesaid date and the learned trial Court adjourned the case by providing final opportunity to the plaintiff to produce evidence subject to payment of cost of Rs,500 for 22-4-2004. On this date the counsel for the plaintiff (Miss Sumera Usto, Advocate) failed to appear before the Court, on whose behalf Mr. Zahid Hussain, Advocate appeared and submitted application for adjournment of the hearing of the case on the ground that the learned counsel for the plaintiff was since to appear before the High Court of Balochistan at Quetta, therefore, she could not come to attend the case.
The learned trial Court after having gone through the contents of the application observed and noted that the application was not supported by the affidavit of the learned counsel nor cause-list or the title of the case or case number in which she was to appear before the High Court of Balochistan has been mentioned in the application, accordingly; on scrutiny of the order-sheets of the case it was noted that the case was fixed for the evidence of the plaintiff on 19-3-2004, 27-3- 2004, 6-4-2004 and 13-4-2004, but no evidence was produced and lastly on 13-4-2004 against the cost of Rs,500 final opportunity for production of evidence was provided to the plaintiff, but plaintiff Authority has failed to produce evidence in support of its case, which shows that it has lost interest and is not interested to prosecute its case, therefore, the suit was dismissed for non-prosecution and decree-sheet accordingly was directed to be prepared. Subsequent to the dismissal of the suit on 18-5-2004 on behalf of the plaintiff application under Order IX, Rule 9, C.P.C. Was filed seeking for restoration of the suit and the same was taken up on 18-5-2004 by the learned trial Court and notice was directed to be issued to the respondents and their learned counsel for 25-5-2004, which were returned as un served, consequently; substituted service was directed to be made on the respondents, but despite service of notice of the application none appeared on their behalf in the Court on 25-5-2004, accordingly; the learned counsel for the appellant/plaintiff was heard and by means of order of even date the application was rejected on the ground that the suit was dismissed for non-prosecution on account of the failure of the plaintiff to produce evidence on five dates of hearing fixed for the purpose and such order of dismissal of suit cannot be recalled/cancelled. Both these orders i,e, dismissal of the suit pursuant to which decree was passed and the subsequent order dated 29-5-2004 rejecting the application filed under Order IX, Rule 9, C.P.C. Have been assailed in the instant appeal.
3. The relevant facts relating to the Civil Suit No,30/2003 (subject matter of R.F.A. No,23/2004) are that on or about 22-11-2003 appellant Authority/plaintiff instituted Civil Suit for recovery of Rs,31,21,925 against respondents in the Court of learned Civil Judge Lasbella at Hub, wherein the following reliefs were claimed:-- "(i) For a decree in favour of the plaintiff and against the defendant for a sum of Rs,31,21,925 (rupees thirty one lac twenty one thousand nine hundred and twenty five rupees) along with the mark up at the rate of 14 % from the date of the institution of this suit till the payment is made to the plaintiff.
(ii) Personal decree against the defendants for recovery of the balance amount if any from the assets/properties.
(iii) An injunction restraining the defendants, surety and everybody claiming through him in any manner from removing/disposing off the assets from the said factory..
(iv) Cost of the suit may graciously be awarded.
(v) Any other/further/additional relief or relief (s) which this honourable Court may deem fit and proper under the circumstances." The suit was registered on 3-2-2003 and summons were issued for respondents/defendants, who by means of their joint written statement dated 23-2-2004 contested the suit on various grounds of law and facts, as well as; the application filed by the appellant Authority under Order XXXIX, Rules 1 and 2, C.P.C. Was also contested by the defendants by filing rejoinder to application dated nil. The learned trial Court out of pleadings of the parties on 9-3-2004 framed the issues and fixed the case for 19-3-2004 for the evidence of the appellant/plaintiff with the direction to file list of witnesses. On this date i,e, 19-3-2004 list of witnesses of the appellant was filed and no evidence was produced and on behalf of the appellant's learned counsel Miss Sumera Usto, Advocate, the learned Junior Advocate in her chamber submitted that Miss Sumera Usto was to appear on the said date before the High Court of Balochistan and requested for adjournment for production of evidence. Request so made was not opposed by the learned counsel for the respondents/defendants, accordingly; as requested for; the case was adjourned 27-3-2004 for the evidence of the plaintiff, but on this date too no evidence was produced by the appellant/plaintiff, as such; against cost of Rs,200 another opportunity in the interest of justice was afforded to the plaintiff for production of evidence on 6-4-2004 two witnesses namely Mushtaq Ahmed (Office In charge Billing Section) and Abdul Naeem Sheikh (Assistant Manager Finance) were produced by the appellant, but due to absence of Miss Sumera Usto, Advocate their statements could not be recorded and the case was adjourned to 13-4-2004 for the evidence of appellant/plaintiff against the cost of Rs,300 but on this date no one appeared for the appellant/plaintiff as well, nor any evidence was produced by the plaintiff and the learned trial Court in the interest of justice for the third time against cost of Rs,500 adjourned the case to 22-4-2004 for the evidence of the appellant/plaintiff. The learned counsel for the appellant (Miss Sumera Usto) was absent on 22-4- 2004 when the case was taken up for hearing nor any witness of the plaintiff was in attendance, whereas; Mr. Muhammad Usman Lasi, Advocate appeared for the respondents/defendants. At this stage Mr. Zahid Hussain, Advocate appeared on behalf of the plaintiff's counsel and submitted an application on behalf of Miss Sumera Usto, Advocate seeking for adjournment on the ground that the counsel for the plaintiff has left for Quetta to attend the honourable High Court of Balochistan.
The learned trial Court having considered the contents of the application observed that the same was not supported by an affidavit nor cause-list of the honourable High Court of Balochistan was appended therewith, which also lacked the title of the case in which the learned Advocate for the plaintiff was to appear before the High Court. The learned trial Court on scrutiny of the order-sheets of the case observed that on 19-3-2004, 27-3-2004, 6-4-2004 and 13-4-2004 repeatedly opportunities were afforded to the plaintiff to produce evidence even against cost, but the plaintiff failed to produce evidence, as such; the learned trial Court observed and came to the conclusion that the plaintiff has lost interest in the case, consequently; the same. Was dismissed for non- prosecution and decree-sheet was directed to be prepared accordingly.
4. Subsequent to the dismissal of suit, on 18-5-2004 the learned counsel for the appellant filed a Miscellaneous Application under Order IX, Rule 9, C.P.C. Seeking for restoration of the suit on the grounds taken in the affidavit filed in support of the application and copy of the order dated 23-4- 2004 passed in Civil Petition No,2/2002 by the honourable Company Judge of the High Court of Balochistan was also appended therewith. Notice of this application was served on the learned counsel for the defendants, which was contested by means of rejoinder dated 27-5-2004 filed by the respondents No,2 (Mukhtiar Ahmed Khawaja). The learned trial Court after hearing the parties' learned counsel vide order dated 29-5-2004 rejected the application being not maintainable on the ground that the suit was dismissed for non-prosecution, which was an appealable order and thus; the same cannot be recalled/cancelled.
5. The learned counsel for the parties have been heard. The appellant's learned counsel contended that on 22-4-2004, the date on which the impugned order and decree dismissing the suit of the plaintiff was passed by the learned Civil Judge, the learned counsel for the appellant was not present as she had to leave for Quetta to appear as an official liquidator before the honourable High Court on 23-4-2004 thus; application for adjournment was filed before the learned trial Court requesting for adjournment and for such reason attendance of the cited witnesses could not be procured, but the learned trial Court mainly on account of the previous attributed conduct of the plaintiff and its failure to produce evidence for which opportunities were afforded dismissed the suit after taking into consideration the request for adjournment by observing that neither the cause-list relating to the case in which the appellant's learned counsel was to appear before the High Court was appended with the application for adjournment nor title and case number of such case was mentioned, rejected the request so made seeking for adjournment and the close scrutiny of the impugned order shows that the case in view of the written request was intended to be adjourned, but was not done so for the reason that the cause-list of the case was not attached with the application nor title and case number was mentioned in the application, there seemed to be no hesitation on the part of the learned Judge to have not adjourned the case providing opportunity for production of evidence. The learned counsel further contended that the ingredients to attract application of Order XVII, Rule 3, C.P.C. Were not satisfied and secondly; before pressing the penal provisions of the above mentioned Rule into service there must be some evidence on record for decision of the case which in the instant case was wanting, hence; prematurely the powers vesting in the trial Court have been exercised and in any case on account of non- appearance of the appellant/plaintiff before the trial Court on the above said date and failure to produce evidence, the learned trial Court to have at best resorted to the course provided under Rule 2, Order XVII, C.P.C. Read with Order IX for dismissing suit of the appellant, moreover; as in the impugned order passed on 22-4-2004 the relevant provision of the law was not referred to and powers presumably were exercised under Order IX, Rule 8, C.P.C., therefore, application was filed by the plaintiff/appellant under Order IX, Rule 9, C.P.C. Seeking for restoration of the suit, but the same was rejected vide impugned order dated 29-5-2004 on the ground that the order earlier passed by the learned trial Court dismissing the suit of the plaintiff cannot be reviewed/recalled as the suit was dismissed for non-prosecution on account of failure of the plaintiff to produce evidence despite five consecutive opportunities afforded to the appellant for production of evidence. The learned counsel pointed out that only two common witnesses were cited in both the cases instituted by the appellant and they had appeared before the Court on 6-4-2004, but on account of the absence of the appellant's learned counsel their statements could not be recorded, who were also bound down to appear before the trial Court on 13-4-2004, but they did not appear on the fixed date nor the counsel for the appellant was present, as such; the case was adjourned to 22-4-2004 providing final opportunity to the plaintiff for production of evidence subject to payment of cost of Rs,500 but on this date as the counsel for the plaintiff (Miss Sumera Usto) was to leave for Quetta to appear before the honourable Company Judge, High Court of Balochistan as such; she was constrained to submit application in the trial Court for adjournment and for such reason evidence could not have been produced, but the learned trial Court for the reasons mentioned in the order of even date did not entertain the request and dismissed both the suits in the purported exercise of powers under Order XVII, Rule 3, C.P.C. As well as; rejected the application seeking for restoration of the suit. According to the learned counsel orders impugned in the appeal being not tenable in law in view of the given facts of the case, may in the interest of justice be set aside and the case be remanded to the trial Court for proceedings in accordance with law. The learned counsel in support of his arguments placed reliance on the reported judgments i,e, Wadera Dalel Khan and 7 others v. Province of West-Pakistan and 6 others, PLD 1970 (Quetta) 79; N.-W.F.P.
Through Collector, Dera Ismail Khan and 2 others v. Dr. Inayatullah and 2 others, 1990 CLC 1239 (Pesh.); Messrs Manzoor Ahmed & Brothers v. Islamic Republic of Pakistan and 4 others, 1990 MLD 2140 and Shamsuddin v. Muhammad Sharif 1996 MLD 1094.
6. Mr. Muhammad Ayaz Khan Sawati, the learned counsel for the respondents submitted that in both the cases issues were framed on 9-3-2004 in presence of the parties' learned counsel and the, case was adjourned to 19-3-2004 with the direction to the plaintiff to file list of witnesses within seven days but on the date fixed for production of evidence, only list of witnesses was filed and no evidence was produced and the appellant's learned counsel was also not present on whose behalf request for adjournment was made by the junior counsel, as Miss Sumera Usto was to appear before the High Court of Balochistan, Quetta and on such request opportunity was afforded for production of evidence on the next date i,e, 27-3-2004, but on this date as well, no evidence was produced by the plaintiff, however; the learned trial Court adjourned the case to 6-4-2004 for the evidence of the plaintiff subject to the payment of cost of Rs,200. On this date, the learned counsel for the plaintiff was not present before the Court, however, the cited two witnesses were present but they could not be examined due to non-appearance of the appellant's counsel. He further submitted that on 19-3-2004, 27-3-2004, 6-4-2004, 13-4-2004 as well as; on 22-4-2004 the plaintiff successively failed to produce evidence without any cause shown by the plaintiff, consequently; vide order impugned before this Court, the learned trial Court was constrained to exercise powers under Order XVII, Rule 3, C.P.C. By closing plaintiff's evidence to whom even final opportunity was afforded subject to payment of cost, therefore, the learned trial Court had to dismiss the suit for non-prosecution, to which no exception can be taken, and; as the suit was dismissed for non- prosecution therefore, application was incompetently submitted under Order IX, Rule 9, C.P.C.
Seeking for restoration of the suit, hence; the trial Court appropriately dismissed the same being not maintainable. He in support of his arguments 'placed reliance on the reported judgment of honourable Supreme Court in the case of Executive Engineer, Peshawar v. Messrs Tour Muhammad & Sons and 4 others (1983 SCMR 619).
7. The contentions put forth by the parties' learned counsel have been considered in the light of the diary-sheets of the case and the other relevant documents available on the case file summoned from the trial Court, which has been gone through carefully including the impugned orders and the case-law cited during the course of arguments by the learned counsel for the parties. It is an admitted feature of the case that out of pleadings of the, parties issues were framed on.9-3-2004 and the plaintiff was simultaneously directed to file list of witnesses within seven days and to produce evidence on 19-3-2004, but on this date the learned counsel for the plaintiff was not present and on her behalf junior counsel Mr. Zahid Hussain appeared in the Court and submitted list of witnesses on behalf of the plaintiff, who also requested that Miss Sumera Usto, the learned counsel for the plaintiff was since to appear before the honourable High Court of Balochistan, therefore, she failed to attend the case to which no reservation was expressed by the defendants' learned counsel, accordingly; as per request made by the junior counsel case was adjourned to 27-3-2004 for the evidence of the plaintiff, on which date both the learned counsel for the parties were present, but no evidence was produced, consequently; subject to the payment of cost of Rs,200 another opportunity for production of evidence was provided to the plaintiff for 6-4-2004, but on this date the plaintiffs counsel was not present and on her behalf Mr. Zahid Hussain, Advocate made appearance and on this date the only two cited witnesses were present but could not be examined due to non-appearance of the plaintiff's counsel and against cost of Rs,300 case was adjourned to 13-4-2004, but on this date too no evidence was produced and final opportunity subject to payment of cost of Rs,500 was afforded to the plaintiff for production of the evidence and case was fixed for 22-4-2004. On this date Miss Sumera Usto, Advocate for plaintiff failed to appear before the Court and on her behalf Mr. Zahid Hussain, (junior counsel) appeared and submitted application for adjournment on the ground that Miss. Sumera Usto, Advocate was since to appear before the High Court of Balochistan, Quetta, hence; he could not come to the Court to attend the case. Also, on this date no witness was produced and the learned trial Court observed that application was not supported by the affidavit of the learned counsel nor copy of the cause- list or title of the case or case number in which she was to appear before the High Court of Balochistan has been mentioned in the application. On scrutiny of the order-sheets of the case it was noted that the case was fixed for the evidence of the plaintiff's on 19-3-2004, 27-3-2004, 6-4- 2004, 13-4-2004 and 22-4-2004, but the plaintiff failed to produce evidence even subject to the payment of the cost, which shows that the plaintiff has lost interest in the case, therefore, the suit was dismissed for non-prosecution vide order dated 22-4-2004.
8. Bare perusal of the impugned order dated 22-4-2004 would go to show that the learned trial Court exercised powers under Order XVII, Rule 3, C.P.C. Without quoting the provisions of law, as the suit was dismissed for non-prosecution on account of successive failure of the plaintiff to produce evidence on the five different dates fixed by the Court for the purpose and the consensus of the Superior Courts as regards the application of provisions of Order XVII, Rule 3, C.P.C. Is that the following conditions must co-exist:
(i) adjournment must have been granted to the party at his request A or for other reasons;
(ii) it must have been granted to it for the purpose mentioned in the rule;
(iii) the party who had taken the time defaulted in doing the act for which he took the time from the Court;
(iv) there must be some material on record for decision of the case on merits and; lastly that the Court must decide the suit forthwith that is within a reasonable time.
A decision as envisaged by rule 3 of Order XVII must be a decision on merits; i,e, on consideration of such material as may be necessary and available, and it should not be a summary decision as for the purpose, the Court was to hear the parties and to give judgment on each and every issue in the light of the evidence brought on record. Therefore, where the decision was not on merits of the case it would not sustain, hence from the provision of rule 3 it is quite clear that in the event of default, the Court may proceed to decide the suit forthwith meaning thereby that on the basis of such material as may be available before the Court, the suit can be decided without allowing the defaulting party another opportunity to produce his witnesses or to perform such other act as may be necessary for the progress of the case 1993 SCMR 504; PLD 1991 SC 25; 1990 CLC 1293; 1993 MLD 377; 1992 CLC 1940; PLD 1993 Pesh. 192; PLD 1991 Pesh. 25 (D.B.); PLD 1969 Kar.418; 1990 CLC 1743 and PLR 1970 (1) W.P. 838 (F.B.).
In the reported judgment cited by the respondents' learned counsel i,e, 1983 SCMR 619; it has been held by the Honourable Supreme Court that Order XVII, rule 3, C.P.C. Applies where a party, who is granted time to perform some act not only fails to do so, but is also absent on the date to which the hearing is adjourned. It is immaterial whether the adjournment was granted at the instance of the party or for other reasons and where a defendant does not appear at an adjourned hearing, this rule applies irrespective whether he appeared at the first hearing or not and the Court has to exercise its discretion and its hands are not tied by the previous ex parte order.
In the instant case all the prerequisites for the exercise of the discretion vesting in the Court mentioned above, were not in existence such as; that there was no material available with the learned trial Court to have decided the case on merits in the light of the issues framed out of pleadings of the parties, and secondly; the plaintiff on the crucial date i,e, 22-4-2004 was represented by the junior counsel Mr. Zahid Hussain, Advocate who appeared on behalf of the plaintiff's counsel (Miss Sumera Usto, Advocate) and submitted application for adjournment on the ground that she was to appear before the Honourable High Court at Quetta on 23-4-2004. The close scrutiny of the impugned order dated 22-4-2004 indicates that the learned trial Court in view of the written request made for adjournment did not allow the same merely for the reason that cause-list of the case in which she was supposed to appear before the High Court was not appended with the application nor even title and case number was mentioned in the application, hence; the Court declined to accede to the request for adjournment and; had the case number and title of the case been mentioned in such application the learned trial Court would have in all probabilities adjourned the case on such ground. Scrutiny of the case file summoned from the Trial Court shows that along with the application filed under Order IX, rule 9, C.P.C., photo stat copy of the order dated 23-4-2004 passed by the Honourable Company Judge in Civil Petition No,2/2002 was filed which shows that Miss Sumera Usto had appeared before the learned Judge on 23-4- 2004 as an official liquidator and for appearance before the said Court she must have left for Quetta on 22-4-2004 i,e, the date on which the impugned order was passed and on her behalf Mr. Zahid Hussain Advocate her junior in the chamber had appeared before the Court, as such the plaintiff was deemed to have been present before the Court, as it cannot be said that the plaintiff on such date was absent, hence; one of the prerequisites for the exercise of discretionary powers under rule 3, i,e, the party concerned was absent when the case was taken up for hearing, was also wanting, 1983 SCMR 619 ref:. Moreover it is worthwhile to note that on 6-4-2004 the only two witnesses namely Mushtaq Ahmed and Abdul Fateh Sheikh intended to be produced were present before the Court, but they could not be examined due to failure of the plaintiff's counsel to appear on 13-4-2004, before the Court and they were also bound down to appear on 13-4-2004 to which the case was adjourned, but they failed to appear before the Court on the said date and subject to the payment of cost of Rs,500 final opportunity was afforded to the plaintiff for production of witnesses/evidence and on failure by the plaintiff to produce witnesses as above said the impugned order was passed. As the plaintiff's witnesses were present on 6-4-2004 but could not be examined due to default of the plaintiff's counsel, therefore, it cannot be said that the plaintiff successively failed to produce evidence at the trial. It may be observed that repeated failure on the part of the plaintiff's counsel in making appearance before the Court and the default on the part, of the plaintiff to produce evidence was not appreciable, as it was obligatory on the part of the plaintiff to have expeditiously completed its side of evidence for which ample opportunity was provided by the learned trial Court to whom obviously further indulgence in producing evidence on the part of the Court though; was not justified, yet; keeping in view the provisions of rule 3 of Order XVII, C.P.C. Interpreted by the superior Courts, all the essentials for the exercise of discretion referred to above were wanting in the case, therefore, the impugned order dated 22-4-2004 being not sustainable has to be set aside. However. The subsequent order dated 29-5-2004 rejecting the application filed by the plaintiff seeking for restoration of the suit being appropriate and in accordance with law, is maintained. The result is that the impugned order and decree dated 22-4-2004 is set aside and the case stands remanded to the learned trial Court to proceed further with the case in accordance with the law with direction to the plaintiff to complete its side of evidence within six weeks from the date of receipt of notice by the Trial Court. Appeal stands allowed in the above terms, leaving the parties to bear their own costs. Decree-sheet be drawn accordingly.