1. RAFIULLAH SULTANI, J.---This appeal is directed against the judgment and decree of District Judge Mirpur dated 20-9-2006, whereby, the judgment and decree of Senior Civil Judge Mirpur dated 29- 5-2006 was maintained.
2. ' Brief facts of the case as alleged in this appeal are that a suit was filed by plaintiff, herein appellant, against the defendant, herein respondent, in the Court of Senior Civil Judge Mirpur for recovery of amount Rs,25,000. After due course of law, that suit was dismissed by Senior Civil Judge Mirpur on 29-5-2006 for want of evidence. Feeling aggrieved by the said judgment and decree, appellant filed an appeal before District Judge Mirpur, which was dismissed on 20-9-2006, hence this appeal.
3. ' The learned counsel for the appellant reiterated the grounds of appeal and further contended that appeal was at initial stage and the learned District Judge Mirpur has dismissed the appeal for noncompliance of order of the Court under Order IX, Rule 2 of C.P.C. He further contended that Order IX, Rule 2 of C.P.C. Is not mandatory in nature and it is discretionary in nature and the impugned judgment passed by the learned District Judge Mirpur is not in accordance with law and natural justice. He further contended that firstly it was ordered by the appellate Court to submit the address of respondent on 14-7-2006 and the case was adjourned for further proceedings on 17-8- 2006. It was held by the Appellate Court that address of the respondent is incomplete and the case was fixed on 20-9-2006. On 20-9-2006 the appeal was dismissed by the first Appellate Court for non-compliance of its order. In support of his version, he cited following case law: [1993 CLC-1982], [2003 CLD-531] & PLD 1992 Pesh-18].
4. ' I have heard the learned counsel for the appellant and gone through the available record of the case carefully.
5. The appeal was dismissed by the first Appellate Court on 20-9-2006 for non-filing of correct address of the respondent and noncompliance of order of the Court under Order IX, Rule 2 of C.P.C.
6. For proper perception, here I would like to reproduce Order IX, Rule 2 of C.P.C., which reads as under:- "2. Dismissal of suit where summons not served in consequence of plaintiff's failure to pay costs.--- Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, the Court may make an order that the suit be dismissed: ' Provided that no such order shall be made although the summons has not been served upon the defendant, if on the day fixed for him to appear and answer he attends in person or by agent when he is allowed to appear by agent."
7. It is evident from the above provision of law that word "shall" is not used in the above-quoted provision of law and due to this reason, the said provision is not imperative in nature. Omission on part of the appellant for non-filing of correct address of the respondent for service does not warrant penalty in shape of dismissal of suit under Order IX, Rule 2 of C.P.C. It was held in case titled Muslim Commercial Bank Ltd. v. Khabeer Trading Corporation (Capt. (b) reported in [2003 CLD531, which reads as under:--
(b) Civil Procedure Code (V of 1908)- ----0.IX, R.2---Dismissal of suit where summons not served in consequence of plaintiffs failure to deposit process fee---Provision of O.I,X R.2 C.P.C. Being not of imperative nature, rigid application thereof was not warranted and Court was not bound to pass order of dismissal.
8. ' It is settled principle of law that case should be decided on merits and law favours adjudication of rights of the parties on merits. The instant case was at initial stage and only one opportunity was provided to appellant for filing of correct address of respondent, it is in interest of justice to decide the case on merit and not on technical basis.
9. ' In view of above, the appeal is accepted and the impugned order District Judge Mirpur dated 20- 9-2Q06 is hereby set-aside. Therefore, the case is remanded to the learned District Judge Mirpur for fresh adjudication of the parties on merits and to provide one opportunity to appellant for filing the correct address of respondent, if he fails to do so then decide the matter in accordance with law.