SHAMIM HUSAIN KADRI, J.---Plaintiffs brought a suit for ,declaration in the Court of Senior Civil Judge, Quetta, on 3rd November 1965 claiming that the running of water in river Hun ,from Mauza Jhalli Neelra the place of residence of the plaintiffs as the exclusive property of the plaintiffs and other share-holders and for permanent injunction restraining the defendants from execution of any proposed scheme whereby they intend to raise a pukka embankment from that point to take water belonging to the plaintiffs to the land of defendants 3 to 7 of Mauza Lanji Mereywalli. The suit was filed on behalf of respondents 3 to 7 on 12th May 1966. Respondents 1 and 2 filed written statements on 15th June 1966.
2. The suit was dismissed for non-prosecution on 13th March 1968 and was restored again on 26th June 1968. Issues were framed by the trial Judge on 31-7-1968, and it was ordered,, to put up the matter on 15th August 1968 for filing the list of witnesses. On that day the learned counsel appearing on behalf of the plaintiffs submitted an application praying for an adjourn--ment of the case as he was unable to contact his clients in order to receive instructions with regard to the names and addresses of the persons they intended to produce in support of their case. The case was adjourned for filing the list of witnesses by the parties to 13th September 1968.
3. Again on 13th September 1968 the plaintiffs counsel, was unable to put in the list but promised that he will producer the witnesses in the Court on the next date of hearing without putting in the list. The Court agreed to this request and the matter came up for hearing before the Court on 22nd October-- 1968.
4. From the perusal of the orders passed by the trial Court though it is not clear that the plaintiffs were absent, but this fact, came to light from the application submitted by the plaintiffs for the restoration of the suit that they were absent on that day. The plaintiffs being absent the suit was dismissed by the learned trial Judge under Order XVII, rule 3, C. P. C. An application for setting aside the order was made before the trial Judge on 8th November 1968 which was dismissed on 23rd November 1968. The plaintiffs have come up in appeal before this Court which was admitted on 29th August 1968.
5. Admittedly none of the plaintiffs was present when the-- suit was dismissed by the trial Judge and there was no material on the record for him to give a decision on merits. The evidence was yet to be produced by the plaintiffs. The Court could only, proceed under order XVII, rule 2, C. P. C. In such circumstances. Either the suit could be adjourned or action could be taken under Order IX, C.
P. C. The Court could dismiss the suit on merits only if some evidence of the plaintiffs had been recorded and in his view that evidence was not sufficient enough to substantiate their claim. But stringent action under Order XVII, rule 3, C. P. C., without there being any documentary or oral evidence-- on record, was not available to the Court under the law. Distinction has been drawn between the two rules by a Full Bench of Bombay High Court reported as Basalingappa Kushappa Kumbhar-- and others v. Shudranappa Irappa Shivanagi and another (AIR 1943 Bom. 321) and our above view is in accord with the decision of the Full) Bench.
6. As we find that the order passed by the trial Court not on merits, mere mentioning by the Court that the suit dismissed under Order XVII, rule 3, C. P. C. Would not bring the order under that rule. It was so held in Raja Singh v. Manna Singh and others (AIR 1940 All. 217).
There is another feature of this case and that is that on the preceding day of hearing learned counsel for the plaintiffs made a promise to the Court that the evidence will be produced in spite of the fact that he had not put in any list of witnesses. This pro--posal seems to have been made by the learned counsel in order to avoid the dismissal of the suit under Order XVII, rule 2, C. P. C. On that day. By securing this promise the Court could be in no better position to make an order under Order XVII; rule 3, C. P. C. On the subsequent hearing when the plaintiffs had not appeared on that day and the counsel had not been able to con--tact them since they were living in a far off place not linked with the modern communications. Mr. Muhammad Ahmad Advocate appearing on behalf of the plaintiffs strenuously urged that such a stringent action by the Court was not called for in the circumstances of the case. Ordinarily the Court should have granted an adjournment on payment of costs. The dismissal of the suit under Order XVII, rule 3, C. P. C. Was hardly called for and is illegal. We are in agreement with the submission made by the learned counsel for the appellants that dismissal under Order XVII, rule 3, C. P. C. Is untenable. It is desirable that litigants should get decision on merits in their cause. If the plaintiffs fail to comply with the order of the Court repeatedly then an action can be taken against them under the relevant provision of law. We should make it clear that extreme measures should only be taken if the Court comes to the conclusion that the plaintiffs by their conduct had made it impossible for the Court to proceed with the trial of the suit and the continuation of the proceedings was only intended to cause harassm ent to the defendants.
7. We accept this appeal, set aside the order and remand the case to the trial Judge who will pass such order which he may deem proper in the light of the above discussion. We have purposely refrained from making any observation on the merits of the case so as to avoid any embarrassm ent for the trial Court. No order is made as to costs.
S. Q.