MUHAMMAD MUZAMMAL KHAN, J. --- Instant appeal was filed against the judgment/decree dated 1'8.03.2006 passed by the learned Civil Judge. Samundari, whereby appellants' defence was struck by invocation of Provisions of Order XVII, Rule 3, C.P.C. And their suit for specific performance was dismissed on account of lack of evidence.
2. Succinctly, relevant facts are that appellants filed suit for specific performance of an agreement to sell dated 02.05.2002 whereby respondent had agreed to sell his land fully detailed in the plaint, for an amount of Rs. 9,000/-per marla and received Rs. 2,00,000/- as earnest money. Appellant claimed to have been paying different amounts towards the settled sale price but could not get the sale-deed executed inspite of his readiness/willingness to pay the balance amount on 05.05.2003, necessitating filing of suit.
Respondent being defendant in the suit contested the same by filing his written statement wherein he admitted execution of the agreement to sell dated .02.05.2002 but pleaded that appellants could not discharge their obligations within the time stipulated on account of which the agreement to sell stood rescinded. Controversial pleading of the parties necessitated framing of issues and recording of evidence. Case was being fixed for .Evidence of the appellants/plaintiffs when on 11.02.2006, the same was adjourned to 18.03.2006 on account of death of some Advocate/Member of the Bar Association. On the date adjourned i.e. 18.03.2006 the 'learned Civil Judge. Seized of the suit,.Due to non-production of evidence by the appellants, invoked his jurisdiction under Order XVII, Rule 3, C.P.C. And closed their evidence and simultaneously dismissed their Suit vide his judgment/decree dated 18.03.2006. Appellants, thereafter, filed instant appeal, which was admitted, to regular hearing and respondent in response to notice by this Court appeared and was represented through his counsel.
3. We have heard the learned counsel for the parties and have examined the record of the Trial Court. The learned counsel for the respondent attempted to support the impugned judgment/decree but had nothing with him to oppose the. Appellant's claim that since their suit was not adjourned on their request on the preceding date i.e. 11..02.2006, the penal provisions invoked were inapplicable: Besides language of Rule 3 of Order XVII, C.P.C., sture-decises has firmly settled to the effect that party being penalized should have been required' by the court to produce evidence or to do any other set for the progress of the suit but fails to do the same. Appellants might have been given numerous opportunities of producing evidence and they might have failed but the crucial date for applicability of the provisions of law under discussion, is the date from which . The suit was lastly adjourned and in this case, the pivotal date is 11.02.2006 which as noted above, adjourned the case on account of death of some Advocate/Member of the Bar- Association, Faisalabad. This adjournment cannot be attributed to the appellants thus we are of the Considered view that evidence of the appellants was incorrectly closed by applying the provisions of Order XVII, Rule 3, C.P.C. Which were not attracted but this aspect of the case escaped notice of the Trial Court, resulting in miscarriage of justice thus impugned order/decree cannot be allowed to be sustained and deserved to be reversed.
4: For the reasons noted above, instant appeal is bound to succeed and is accordingly accepted, with the result that order/judgment/decree dated 18.03.2006 are set-aside and appellants suit shall be deemed to be pending and they shall be granted opportunity to conclude their entire evidence on the maximum two dates, to be fixed by the Trial Court, subject to .Payment of costs of Rs. 10,000/- to the respondent. Parties are directed to appear before the Trial Court on 28.11.2006 for further proceedings in accordance with law: There will be no order as to costs, as far as instant appeal is concerned.