' MUHAMMAD AMEER BHATTI, J.---This revision petition is directed against the order dated 22-2- 2003 passed by the learned trial Court, whereby the application for restoration of the suit (dismissed for non-prosecution as well as for non-production of evidence) was dismissed on the ground that the suit of the petitioner was dismissed for non-production of evidence, therefore, the order impugned was appealable and the learned trial Court had no jurisdiction to review its order and the application for restoration of petition being not maintainable, was dismissed.
' The brief facts of the case are that the suit for' specific performance filed by the petitioner was dismissed for non-prosecution vide order dated 24-5-1999 and application for restoration dated 1- 6-1999 was also dismissed for non-prosecution as well as for non-production of evidence vide order dated 25-2-2000. Subsequently, the petitioner moved an application for restoration of the said application dated 25-3-2000 on the same day but this application was dismissed on 22-2- 2003 on the point of non-maintainability.
3. The learned counsel for the petitioner contends that the order impugned on the face of it is not tenable in the eye of law inasmuch as the Court was to dismiss the application of the petitioner either for non-prosecution or for non-production of evidence, therefore, both the powers could not be exercised simultaneously, as it is impermissible under Order XVII, Rule 2, P.P.C. Therefore, application under Order IX, Rule 4 C.P.C. For the restoration of the application was in consonance with the provision of law and the learned trial Court' was duty bound to restore the application of the petitioner. Hence by not exercising the power, the learned trial Court has committed material illegality and irregularity rendering the impugned' order invalid. He further contends that the suit of the petitioner could not be dismissed for non-production of evidence, as the preceding date was not granted on the request of the petitioner, therefore, the provision under Order XVII, Rule 3, C.P.C.
Was not to be exercised by the learned trial Court. Reliance is placed on Sheikh Khurshid Mehboob Alam v. Mirza Mr. Hashim Baig and another (20.12 SC 361), Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (PLD 1971 SC 434), Lal v. Ghulam Mohd. And others PLD 1975 Lah.
385.
4. On the other hand learned counsel for the respondent contends that the Order XVII, Rule 2, C.P.C.
Empowers the Court to exercise the jurisdiction under Order IX and also any other relevant provision of law, therefore, the learned -trial Court has not committed any illegality and irregularity while exercising both the powers, as it was available to the learned trial Court to dismiss the suit for non-prosecution as well as for non-production of evidence. The learned counsel for the respondent further contends that the word "or" used in Order XVII, Rule 2, C.P.C. Amounts to 'and' therefore, both the powers could have been exercised by the Court, hence the order is well- reasoned and in accordance with law. Reliance is placed on Shahid Hussain v.. Lahore Municipal Corporation (PLD 1981 SC 474), Muhammad Haleem and others v. H.H. Muhammad Naim and others (PLD 1969 SC 270).
5. I have considered the arguments of the learned counsel for the parties and gone through the record of the case as well as the relevant provisions of law.
6. It is well-settled law that while exercising the provision under Order XVII Rule 3, C.P.C., it has to be established from the record that the preceding date has been obtained by such party otherwise his right to lead evidence could not be closed under Order XVII Rule 3, C.P.C. And the perusal of the order dated 17-2-2000 reveals that the case was not adjourned on the request of the learned counsel for the petitioner. It was adjourned in a routine manner without the request of either party, therefore, the learned trial Court had exercised the power under Order XVII, Rule 2, C.P.C. In stricto sensu fashion which is not permissible under the law as adequate opportunity ought to have been provided to the parties, so that the valuable rights of the parties are not trampled on technical grounds.
7. Even otherwise, Order XVII, Rule 2, C.P.C. Is reproduced hereunder:- "0.XVII: R.2 Procedure if parties fail to appear on day fixed.- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit."
The Court has been empowered to exercise the jurisdiction either under Order IX or any other provision of .Law, so the Court has been restrained to exercise the power as provided under Order IX and vis-a-vis under Order XVII Rule 3 C.P.C., as it conflicts the jurisdiction of the Court and the scheme of law and in both the cases different and independent remedies have been provided under the law. When the Court exercises the power under Order IX and dismisses the suit for non- prosecution, then the same Court has the jurisdiction to recall it under Order IX Rule 4 C.P.C., whereas, if the suit has been dismissed for the non-compliance of .The order of the Court, the provision of Order XVII Rule 3 C.P.C. Would come in motion and is deemed to be a judgment on merits and remedy 'against the said judgment is an appeal against the decree. Therefore, the law has specifically barred the Courts to exercise both the powers simultaneously; hence the order impugned cannot be lawfully maintained.
8. The legislature has deliberately made the reference to Order IX and not to Rule 3 of Order XVII C.P.C. And power of the Court to pass such other order as it deems fit is relatable to the case in which some material on record is available in the form of evidence, Rule 3 should have been deserted by falling back to Order IX. Reliance is placed on Syed Haji Abdul Wahid and another v.
Syed Sirajuddin (1998 SCM R 2296) and Muhammad Haleem and others v. H. H. Muhammad Naim and others (PLD 1969 SC 270). Therefore, it is concluded that in absence of the .Petitioners and any evidence on the file, provisions of Order XVII Rule 3, C.P.C. D were inapplicable and instead Rule 2 of the same order was attracted, thus, had to be applied by the Courts below.
9. Since the error was committed by the learned trial Court, the petitioner had the option to get the order set aside according to his understanding, as it is settled law that the act of the Court can, prejudice none. Therefore, it is held that the petitioners rightly moved their application under Order IX, C.P.C. For the G restoration of their suit dismissed for non-prosecution.
10. It is also noticed that the petitioner has specifically mentioned in his application for restoration of suit along with enabling provisions of review of the order and the Court can review his order where the illegality is floating on the surface of the record---even if the appeal is provided against the said order/judgment. Since the Court has committed the lapse, it was obligatory for the same Court to exercise its power provided under Order XL. VII, Rule 1, C.P.C. To correct the error apparent on record.
11. Considering the facts and relevant provisions of law in totality, this Court comes to this conclusion that the order impugned apparently seems to have been passed by exercising the wrong provision of law, therefore, the same is unsustainable in the eye of law. Consequently, the same is set aside with the result that the application for restoration of suit of the petitioner shall be deemed to be pending before the learned trial Court. Parties are directed to appear before the learned Senior Civil Judge, Gujranwala on 27-9-2012, who shall take on this matter either himself or entrust it to any learned Civil Judge for adjudication on merits and decide the same within a period of two months from the order of this Court.
12. This petition stands accepted in the foregoing terms.