' MIAN SAQIB NISAR, J.---Brief facts of the case are, that the petitioner brought a suit for the possession of the land measuring 2 Marlas and 2 Sarsahi, which suit was fixed for his evidence, but the evidence could not be produced on few of the dates and ultimately, the learned trial Court by applying the provisions of Order XVII, rule 3, C.P.C., dismissed the suit on 5-1-1997. Instead of exercising the right of appeal, the petitioner, the same day, moved an application for the restoration of the suit, which application was accepted by the learned trial Court vide order dated 14-4-1997. Aggrieved of the above, the respondents preferred a revision petition, which has been accepted by the learned District Judge vide order dated 19-9-1997 on the premise that the trial Court, after passing the order, had become functus officio, and therefore, was left with no jurisdiction to restore the suit. Hence the present petition.
2. I have heard the learned counsel for the parties. While giving the earlier ex parte decision dated 1-2-2005, I had relied upon the judgment reported as Syed Arshad Naeem and 5 others v. Atta Rabbani and 2 others (1999 M LD 2267) and find it to be the correct law on the subject; the trial Court, therefore, instead of proceeding to close the evidence of the petitioner and dismissing the suit under Order XVII, rule 3, C.P.C., should have applied Order XVII, rule 2, C.P.C.; thus, when the petitioner had moved the application for the restoration of the suit the same day, in substance, it was a review application and because the Court had erred in passing the order, which error was apparent on the face of the record, therefore, the Court rightly passed the order dated 14-4-1997 and by reviewing the earlier order, the suit was restored, resultantly, the learned District Judge should not have interfered and the reason given in this regard is absolutely erroneous and in the improper exercise of jurisdiction. Therefore, the said order is set aside.
3. Only for the reason that the application of the petitioner for the restoration is not captioned as the review application, and the Court has also not kept the review provisions into view while passing the order, would not make much difference, because quoting a wrong provision would not disentitle a party to the correct relief, to grant which is the duty of the Court. May be the tria Court has not given enough reasons in the order from which it could reflect that the Court was exercising its review power, but the legal position undoubtedly remains that the Court was not functus officio, rather retained the power to set aside the earlier order under Order XVII, rule -3, C. P. C .
4. Be that as it may, from the order sheet I find that the petitioner has been negligent in pursuing the matter; he had obtained some opportunities on the previous dates and knew fully well that his evidence has to be produced on the said date. But when the case was called, the evidence was not available, therefore, even if he succeeds on technical ground, in equity, there is lapse on his part for which, present litigation has inflated up to the stage of the High Court. Resultantly, to compensate the respondents, special costs of Rs.10,000 is imposed upon the petitioner, which shall be paid to the respondents before the trial Court by the next date of hearing. The parties are directed to appear before the Court below on 15-2-2006 and the Court shall proceed in accordance with law.
The petition is accordingly allowed.