SYED SAJJAD HUSSAIN SHAH, J.---By way of this appeal Shabab Hassan Khan assailed the judgment and decree dated 31-3-2010, whereby, learned Civil Judge-III, Charsadda proceeded in terms of Order XVII, Rule 3, C.P.C. And dismissed the suit of the appellant.
(1) Brief facts of the case are that:-Appellant has filed a suit for recovery of possession through exercising the right of pre-emption in respect of property detailed in the plaint on payment of Rs.4,00,000. It was contended that the plaintiff/appellant has performed the Talb-iMuwathibat and Talb-i-Ishhad, whereof the instant suit has been filed. The respondent Abdul Hakeem Shah contested the suit by filing a written statement, partial evidence of the plaintiff-appellant was recorded, case was posted for recording oral evidence on 16-2-2010 but on said date the witnesses were not in attendance the case was adjourned on payment of Rs.100 as cost, then the proceedings was adjourned for recording evidence on 25-2-2010, but on the said date the counsel for the respondent was not in attendance, whereas, the witnesses of the appellant were in attendance, therefore, statement could not be recorded, the case was adjourned on payment of Rs.100 as cost, date was fixed as 13-3-2010, on this date the parties were present but witnesses of the plaintiff were not in attendance, therefore, last chance was given to the plaintiff to produce his evidence, eventually the case was po,sted for evidence on 20-3-2010, the parties and witnesses of the plaintiff were present, but plaintiff was not in attendance, however, after 1-00 pm defendant counsel was stated to be busy in some other court. The matter was adjourned to 27-3-2010 with the warning that the defence would be struck off, if the plaintiff failed to produce his evidence. On 27-3-2010 parties and their counsel were present, evidence of plaintiff was not recorded because of strike being observed on Pakistan Bar Council's call, the matter was adjourned to 31-3-2010, on this date the parties were present, but evidence could not be recorded, as learned counsel for appellant was pre-occupied before Hon'ble apex Court at Peshawar. In order to substantiate his statement, learned counsel has produced attested copy of order sheet, showing his pre- occupations as he stated above, therefore, he could not attend the learned trial Court.
2. Learned counsel appearing on behalf of appellant argued that impugned order has been passed in haste and the background of the proceedings has not been taken into consideration. He further argued that an account of professional constraints, the learned counsel for respondent was also unable to attend the Court, although the witnesses of the plaintiff were present, had the learned counsel attended the Court, the evidence could be recorded much earlier of the date of decision. He further argued that on the date of hearing he was busy before the Hon'ble Supreme Court, therefore, he could not appear before the learned trial Court, and the order of learned trial Court is illegal and without jurisdiction.
3. Learned counsel for respondent contended that a number of opportunities provided to the appellant for recording his evidence. Plaintiff/appellant has failed to produce his evidence, twice notices under Order XVII, Rule 3, C.P.C. Were given to the plaintiff/appellant and cost has also been imposed, even then the plaintiff/ appellant has failed to proceed in the case. He further contended that without any lawful reasons, learned counsel for petitioner absented himself on 31-3-2010, therefore, the impugned order was passed against the plaintiff/appellant, same is legal and requires no interference.
' Arguments heard and record carefully perused.
4. The date for recording of oral evidence was fixed on 6-2-2010 to B 16-2-2010, but the evidence of the plaintiff/ appellant was not in attendance, therefore, on such date the case was adjourned on payment of Rs.100 as cost and was posted to 25-2-2010. On this date of hearing learned counsel for defendant was not present whereas the witnesses and the attorney of the plaintiff were in attendance, due to absence of learned counsel for defendant/respondent, evidence could not be recorded. Again the case was fixed for 13-3-2010 but plaintiff/appellant evidence was not available and last opportunity , was given, next date of hearing fixed as 20-3-2010. Although on the said date, the evidence of the plaintiff was present, however, the plaintiff was not present, therefore, adjournment was made for 27-3-2010, on this date the parties and witnesses were in attendance, but on account of strike observed by Pakistan Bar Council, the proceedings could not be taken up by the learned trial Court, consequently the matter was adjourned to 31-3-2010, however, on the said date, the plaintiff and his witnesses were in attendance but his counsel was busy before the august Supreme Court, therefore, the evidence cannot be recorded and the impugned judgment is passed by the learned trial court.
5. In view of above resume of facts, it is crystal clear that the appellant was less on fault, as his evidence and he in person remained present in the court but on account of certain unforeseen reasons on two occasions of hearing, the proceedings could not be carried out. In such circumstances, where the party or his counsel has not committed default intentionally, but on account of certain compelling reasons, in this view of the matter, the court must keep in mind, as to whether party is to be penalized by terminating proceedings or it can be adjourned, as it is purely the discretion of the court to pass the order, which may not be injurious and prejudicial to the vested right of the litigant, as the rule of procedure are meant to advance justice and to preserve the rights of litigants. The provision contained in Order XVII Rule 3 B C.P.C., are not mandatory in nature, discretionary, however, discretion must be exercised in accordance with principle of law. Reliance can be placed on case titled Mst. Ghulam Bibi and others v. Sarsa Khan and others reported in PLD 1985 SC 345:-- "Proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities to be avoided unless it be essential to comply with them on grounds of public policy. The English system of Administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent".
6. No doubt that law prescribed passing of order like impugned one but simultaneously duty cast on the shoulder of court and think upon the consequences of order as it may not prolong the finalization of the proceedings or agonies of the parties ultimately loading the pendency of litigation. In this case, the court has the authority to record the statement of the plaintiff as well as witnesses irrespective of the fact that counsel of the plaintiff/ appellant was present or not, as the rule is laid down by august Supreme Court in case titled "Muhammad Aslam v. Nazir Ahmed reported in 2008 SCM R 942:--
(b) Civil Procedure Code (V of 1908)--- ----0. XVII, Rr. 2 & 3-- Constitution of Pakistan (1973), Art. 185 (3)---Dismissing the suit forthwith--- Non-recording statement of plaintiff---Suit filed by plaintiff was dismissed by Trial Court on the ground that he failed to produce his evidence despite many opportunities---Order passed by Trial Court was set aside by Appellate Court and case was remanded, which order was maintained by High Court-ValidityOn the date when suit was dismissed, plaintiff himself was in attendance and recourse to O.XVII, R.2, C.P.C. Could have been made---Trial Court despite non-production of witnesses by plaintiff instead of dismissing the suit forthwith, should have asked the plaintiff to come in witness box--below---Leave to appeal was refused.
7. Besides, the court may keep in view while passing, such orders, the constrains of the counsel appearing on behalf of the parties, as they have to attend more than one courts at a time, a short adjournment can be granted in order to obviate further proceedings like appeal etc. Whereby the matter can be prolonged, as observed earlier same is against the public policy and interest of public at large.
8. In view of the above discussion, this appeal is accepted judgment and order, is hereby, set aside and the case is remanded back to learned trial Court to proceed in accordance with law and decide on its merits within a period of two months. Compliance report be submitted to Deputy Registrar (Judicial) of this court.