MUHAMMAD MUZAMMAL KHAN, J.---Instant revision petition assailed the appellate judgment, dated 29-3-2006 delivered by the learned Additional District Judge, Mianwali, Camp at Piplan, whereby respondents' appeal was accepted and their suit was restored for trial by the Court of first instance.
2. Succinctly, relevant facts are that one Manzoor Sultan and respondent No.5 filed suit for possession through pre-emption against the sale of 4 Kanals of land, effected through registered sale-deed dated 25-10-1999 in favour of the petitioners. According to them, they gained knowledge of sale on 25-10-1999, in presence of the named witnesses and instantly expressed their intention to pre-empt the same, as their pre-emptive right was superior qua the petitioners, being "Shafi Sharik", and "Shafi Jar". Plaintiff's had claimed that they fulfilled the requirements of section 13 of the Punjab Pre-emption Act, 1991 by performing all the "Talbs", within the time prescribed, thus, their suit deserved to be decreed. Manzoor Sultan, one of the plaintiffs, died pending suit and in his place respondents Nos. 1 to 4 were impleaded as his heirs/legal representatives by the trial Court.
3. Petitioners being defendants in the suit contested the same by filing their written statement.
Controversial pleadings of the parties necessitated framing of issues and recording of evidence.
On 10-3-2004 when. The case was fixed for evidence of the respondents, neither the respondents themselves appeared nor they produced any witnesses and the learned Civil Judge, who was seized of the matter, after hearing the petitioners, dismissed the suit for want of prosecution/non- production of evidence. Respondents on 7-4-2004 filed an application before the trial Court seeking restoration of their suit, which was opposed by the petitioners and was ultimately dismissed on 1-12-2005.
4. Respondents aggrieved of dismissal of their application, filed an appeal before the learned Additional District Judge, where they succeeded as their appeal and application for restoration of suit, were accepted subject to payment of costs of Rs.5,000 and the trial Court was directed to decide the suit after recording of evidence. The petitioners have now filed instant revision petition for setting aside the appellate judgment.
5. I have heard the learned counsel for the petitioners and have examined the record, appended herewith. Undisputedly, on 10-3-2004 nobody appeared on behalf of the respondents/plaintiffs before the trial Court and the order of dismissal of their suit was for want of prosecution/non- production of evidence, meaning thereby that both the provisions of Order IX, rule 8, C.P.C. And those of Order XVII, rule 3, C.P.C. Were simultaneously invoked to non-suit the respondents.
Question which hinges for determination is whether the trial Court was justified in invoking the penal provisions of Order XVII, rule 3, C.P.C. Even though the case was fixed for evidence of the respondents when even none of them had appeared to follow the suit. Language of rule 2 of Order XVII, C.P.C. Is unambiguous and it equips the Court with the discretion to proceed for disposal of suit in one of the modes envisaged in that behalf by Order IX or make such other order as it thinks fit. The trial Court besides proceeding to dispose of suit under Order IX, dismissed the same for non-production of evidence, as well and the later part of the Order is one under rule 3 of the same Order. This provision of law becomes applicable only when any party to the suit had been granted time/opportunity to produce evidence but fails to cause attendance of his witnesses. For determining whether the respondents were granted time on their request, we will have to look into the preceding order from which the case was adjourned to 10-3-2004 and that is order, dated 16- 2-2004. On this date respondent's application for notice to the petitioners to produce original notice of "Talb-i-Ishhad" was decided and they were granted the prayed permission subject to payment of costs of Rs.200 and case was adjourned for evidence of the respondents/plaintiffs, with absolutely final opportunity. The date on which respondent's suit was dismissed, was the first date for their evidence after decision of their application. Though they had earlier been granted many opportunities but those are not relevant to resolve issue under discussion. Since case was 'not adjourned on the request or on behalf of the respondents from 16-2-2004 thus, provisions of Order XVII, rule 3, C.P.C. Were not attracted and could not have been invoked. While forming this view, I have to my credit judgments in cases of Jindwadda and others v. Abdul Hamid and another PLD 1990 SC 1192; K.P.W. Factors (Pvt.) Ltd. v. Shafqat Javed Cheema and others 1998 CLC 110; Muhammad Shafique v. Mst. Zahida Begum and others PLD 1995 Lah. 561; Messrs Yaqeen Ali & Co. v.
Province of Sindh and 2 others 1992 CLC 760 and Wahid Bakhsh v. Judge, Family Court/Senior Civil Judge, Multan and another 1992 CLC 1241.
6. From the language deployed for construction of rule 3 of Order XVII, C.P.C. One can easily conclude that failure to produce evidence has to be by the parties present before the Court and when the respondents were not present, no penal action under this provision should have been taken. In this formulation language of preceding rule is also much helpful wherein reference has deliberately been made by the legislature 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 thinks fit, is relatable to the case in which some material on record is available for decision on merit in terms of rule 3. In absence of any material in form of evidence, rule 3 should have been deserted by falling back to Order IX. In support of this proposition we can refer to the judgments in the cases of 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.
7. Scan of case-law on the subject brings me to hold that in absence of the respondents and any evidence on the file, besides the fact that the case was not adjourned on behalf of the respondents on the preceding date of 16-2-2004, provisions of Order XVII, rule 3, C.P.C. Were inapplicable and instead rule 2 of the same order was attracted and was applied by the trial Court. Respondents rightly moved their application under Order IX, rule 9, C.P.C. For restoration of their suit dismissed for non-prosecution on 10-3-2004. This application not only made out sufficient cause explaining absence of the respondents and their counsel on the date when the suit was called on for hearing but was also moved within the period of limitation of 30 days and the petitioners have already been prized with costs of Rs.5,000 which is sufficient compensation to them for the inconvenience suffered by them on account of dismissal of the suit. Law regarding decision of disputes between the parties is firmly settled to the effect that the cases should be decided on merit instead of divulging in technicalities by unnecessarily knocking out the litigants on the basis thereof.
8. Besides the reasons noted above, scan of record revealed that appellate Court correctly concluded the lis without committing any illegality/irregularity amenable to revisional jurisdiction of this Court. This petition is accordingly dismissed, being devoid of any merit in limine.