' CH. IJAZ AHMAD, J.---Brief facts out of which the present appeal arises are that the appellant filed suit for specific performance in the Court of Senior Civil Judge, Sargodha. Respondent/defendant filed the written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed the following issues:--
(1) Whether the plaintiff is entitled to the decree for specific performance of agreement to sell as prayed for in the plaint? OPP.
(2) Whether the suit is based on mala fide facts? OPD.
(3) Whether the suit is false, frivolous and vexatious and suit is liable to be dismissed? OPD.
(4) Whether the plaintiff has no cause of action to file the suit? OPD.
(5) Whether the suit is totally time-barred? OPD.
(6) Whether the plaintiff has not come to the Court with clean hands? OPD.
(7) Whether the suit of the plaintiff is not maintainable in its present form? OPD.
(8) Whether the suit is liable to be dismissed under Order VII, rule 11, C.P.C.? OPD.
(9) Relief.
2. The trial Court decreed the suit by invoking the provisions of Order XVII, rule 3, C.P.C., vide judgment and decree 8-4-2003. Appellant being aggrieved filed this appeal.
3. Learned counsel for the appellant submits that the case was fixed before the trial Court on 25-3- 2003, but the trial Court was on leave and the case was fixed before the Duty Judge and the Duty Judge adjourned the case for 8-4-2003. The trial Court erred in law to invoke the provisions of Order XVII, rule 3, C.P.C., which is not in consonance with the law laid down by the superior Courts. In support of his contentions learned counsel for the appellant has relied upon Haji Muhammad Ramzan Saifi. v. Mian Abdul Majid and others PLD 1986 SC 129; Jindwadda and others v. Abdul Hamid and another PLD 1990 SC 1192 and Qutab-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109.
Learned counsel for the respondent submits that 27 opportunities were granted to the appellant to produce the evidence but the appellant failed to produce the evidence and the trial Court granted last opportunity to the appellant by imposing cost amounting to Rs.500 vide order dated 11-3-2003, which was paid by the appellant on the next date of hearing. Learned counsel for the respondent, however, submits that the judgments cited by the learned counsel are distinguishable on facts and law.
4. We have given our anxious consideration to the contentions raised by the learned counsel for the parties and perused the record. It is admitted fact that the case was adjourned by the trial Court from 11-3-2003 to 25-3-2003. It is also admitted fact that the trial Court was on leave on the said date and the case was fixed before the Duty Judge and the Duty Judge has adjourned the case to 8-4-2003. The trial Court has invoked the penal provisions against the appellant, which is not in accordance with law laid down in the aforesaid judgments. The judgment of the trial Court is not in consonance with the B judgments of the Honourable Supreme Court, therefore, the impugned judgment and decree are not sustainable. It is settled principle of laws that the judgments of the Honourable Supreme Court is binding on each and every organ in view of Articles 189 and 190 of the Constitution.
' In view of that has been discussed above, the appeal is accepted and the impugned judgment and decree are set aside and the parties are directed to appear before the trial Court on 24-2- 2004. The appellant is directed to appear before the trial Court along with his witnesses on the aforesaid date, who shall provide one opportunity to the appellants/plaintiff to produce his complete evidence and thereafter to decide the suit in accordance will law.