' SYED QALB-I-HASSAN, J.--- This regular first appeal is filed by the appellant/plaintiff against the judgment and decree dated 25-3-2004 in a suit filed by appellant/plaintiff.
2. Brief facts of the case are that the appellant/plaintiff filed a suit for declaration, recovery of possession of documents and permanent injunction. Necessary issues were framed and the suit was fixed for recording of evidence of the appellant/plaintiff on different dates and consequently on 9-4-2003 the case was adjourned on the ground that Advocates are on strike. However, the case was adjourned with the direction that it will be the final and last opportunity to the appellant/plaintiff for recording of his evidence. The case was adjourned to 21-7-2003 and on 21-7- 2003 the learned Presiding Officer was transferred and the case was adjourned by the Reader of the Court for 4-10-2003. On 4-10-2003 suit was adjourned to 9-2-2004. On 9-2-2004 the Presiding Officer was on leave and the case was adjourned by the Reader of the Court for 25-3-2004 but on 25-3-2004 the appellant/plaintiff did not produce evidence and requested for further adjournment which was refused and by the application of provisions contained in Order XVII, rule 3, C.P.C. His evidence was closed and thus, accordingly the suit was dismissed for lack of evidence. The appellant/plaintiff filed the instant regular first appeal to challenge the validity and propriety of the judgment passed by the learned trial Court.
3. Learned counsel for the appellant contended that Order XVII, rule 3, C.P.C. Is applicable to a case where time has been granted to a party at his instance to produce evidence, or to cause attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted. Learned counsel further contended that admittedly the case was adjourned by the Reader of the Court when the learned Presiding Officer was on leave, therefore, the learned trial Court has erred in law while passing the impugned judgment.
4. Learned counsel for the respondents contended that although the case was adjourned on 9-2- 2004 by the Reader of the Court as Presiding Officer of the Court was on leave but it is not necessary for application of Order XVII, rule 3 that time should have been granted by adjourning the case at the instance of the party concerned. He further contended that the suit was adjourned on so many dates on the occasion earlier than the last date of adjournment at the instance of the appellant/plaintiff. Therefore, the learned trial Court has rightly applied provisions of Order XVII, rule 3 in accordance with law.
5. Arguments heard record perused.
6. That admittedly the suit was adjourned on 4-2-2003 on the ground that Advocates were on strike and not on the instance of the appellant/plaintiff and the case was adjourned to 21-7-2003 when the learned Presiding Officer had been transferred and the suit was adjourned by the Reader of the Court for 4-10-2003. On 4-10-2003, the suit was transferred to another Presiding Officer through administrative order and the same was adjourned for 9-2-2004 by the Court. On 9-2- 2004, the learned Presiding officer was on leave and the can was adjourned by the Reader of the Court. The case was admittedly not adjourned at the instance or request of the appellant/plaintiff.
The law was laid down by the Honourable Supreme Court of Pakistan in the case of Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PLD 1971 SC 434 as follows:--- "That this rule (rule 3 of Order XVII, C.P.C.) applied to a case where time has been granted to a party at his instance, to produce evidence, or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted."
' The above said view was also followed by the Honourable Supreme Court of Pakistan in Haji Muhammad Ramzan Saifi v. Mian Abdul Majid and others PLD 1986 SC 129.
7. In the instant case the suit was adjourned for the reason that the Presiding Officer was on leave and not at the instance of the appellant/plaintiff, therefore, the learned lower Court has misdirected itself while passing the impugned judgment and the same is liable to be set aside. The appeal is accepted. Since the suit was filed on 29-2-2000, therefore, the parties are directed to appear before the learned trial Court on 17-11-2008 who will further grant one opportunity to the appellant/plaintiff to lead his entire evidence on the said date. In the circumstances, no order as to costs.
Appeal accepted.