'MAZHAR ALAM KHAN MIANKHEL, J.---The instant revision petition is against the concurrent ,findings of the two Courts below whereby the suit of the petitioners was dismissed by the trial Court under Order-XVII, Rule-3, C.P.C.
2. Learned counsel for the petitioners submitted that the impugned order whereby suit of the petitioners was dismissed under Order XVII, Rule 3, C.P.C. Is not in accordance with law as on the eventful day, the petitioners were not before the Court, so in their absence, dismissal of their suit by applying the provisions of Order XVII, Rule 3, C.P.C. Was joint justified and similarly the appellate Court has also erred a lot by concurring with the findings of the learned trial Court. The trial Court was required to have passed an order under the provision of Order IX Rule 9, C.P.C. In the circumstances.
3. On the other hand, the learned counsel for the respondents submitted that because of the conduct presented by the petitioners, the application of Rule 3, Order XVII, C.P.C. Was quite justified.
For the last two years, the petitioners failed to produce the evidence in spite of the fact that so many times last opportunity was given to them. The order sheet which precedes the impugned order would reveal that a notice under Order XVII Rule 3, C.P.C. To produce their evidence was given to petitioners. So, the impugned order dated 27-10-2008 was the result of negligence conduct of the petitioners.
4. I have heard the learned counsel for the parties and perused the record of the case.
5. Record of the case reveals that it was a representative suit through which rights of people of different villages and tribes were sought for. The progress in the case of the petitioners was not possible because of their failure to produce evidence almost for the last two years and consequently the trial Court was compelled to issue a notice under Order XVII, Rule 3, C.P.C. For production of evidence and on their failure to produce evidence on the eventful day, the trial Court having no option but to dismiss the suit of the petitioners for want of proof by applying the provision of Rule 3 Order XVII of C.P.C.
6. The provision embodied in Rule 3 of Order XVII of C.P.C. Reads as under:-- "Court may proceed notwithstanding either party fails to produce evidence, etc.---Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith."
7. The provision of Order XVII, Rule 3, C.P.C. Would reflect that such provisions are permissive and discretionary in nature and are not mandatory. Where a party fails to produce evidence, the Court may close its evidence and to decide the suit forthwith. It is the requirement of law that such discretionary powers should be exercised on the basis of recognized principles of administration of justice. It is clear from the record that on the eventful day, the petitioners were not present before the Court and in a situation like that, the proper course of action provided by the Code of Civil Procedure is the dismissal of suit of non-prosecution under Rule 9 of Order IX of C.P.C. In absence of petitioners, the application of penal provision of Order XVII Rule 3, C.P.C. Seems not to be proper and justified under the law.
8. The contention of the learned counsel for the respondents while explaining the application of Order 9, Rule IX, C.P.C. That if such a way out is given to a party, then in future, it would become a practice of the defaulting party to the suit that whenever notice under Rule-3 Order XVII, C.P.C.
Would be given, the party on the next day would intentionally absent himself and will wriggle out from the consequences of Order XVII, Rule 3, C.P.C. I am afraid such contention of the learned counsel will have no force on the ground that whenever there is such default in putting appearance before the Court, normally there is a sufficient cause behind the same and the Court before whom the lis is pending adjudication can itself keep an eye on the contumacious conduct of the party because the provisions of C.P.C. Dealing with the restoration of the suit provide that in absence of any sufficient cause for his nonappearance would not entitle him to seek such restoration.
9. In the view of the matter, I have no hesitation to accept the present revision petition by setting aside the concurrent findings of the two Courts below which are the result of illegal and irregular exercise of their jurisdiction but with a fine of Rs,10,000 and a last opportunity to the petitioners to produce their evidence without fail otherwise the trial Court will be constrained to invoke the provision of Order XVII, Rule 3, C.P.C. Again. So, the parties are directed to appear before the trial Court on 30-4-2010 and produce their evidence without fail. Office of this Court is also directed to send back the record of the case immediately so as to reach the trial Court before the date fixed.