' MALIK MANZOOR HUSSAIN, J.---This -revision petition has been directed against Judgment dated 27.11.2013, passed by the learned Additional District Judge-II, Peshawar, whereby the appeal filed by the petitioners was dismissed and the orders passed by the learned Trial Court dated 14.3.2012 and 13.6.2012 were maintained.
2. Briefly sated the facts of the case are that petitioners filed a suit on 29.3.2007 for declaration and permanent injunction with regard to ownership of suit shrine fully described in the heading of the plaint. The suit was resisted by the respondent by filing written statement. During trial, the petitioners failed to produce evidence which resulted ihto notice issued under Order 17, Rule 3, CPC.
On the faithful da i,e, on 14.03.2012, despite notice, the petitioners not only failed appear in Court, but also failed to record the statements of required witnesses, thus by invoking provision of Order 17, Rule 3, CPC, their suit was dismissed. Though the order passed was appealable but the petitioners preferred application for restoration of their suit before the leaned Trial Court which was dismissed on 13.6.2012. Against the said order Civil Appeal was filed and that was dismissed through impugned Judgment dated 27.11.2013 by the learned Additional District Judge.
3. Learned counsel for the petitioners contended that the wording used in Order 17, Rule 3, CPC does not contain the word dismissal of suit, but the word used is "proceed to decide the suit forthwith", therefore the learned. Courts below failed to properly appreciate the intention of the law-makers who purposely not inserted the word dismiss the suit in the aforesaid provision. It was further contended that Courts of law are bound to decide the matter on merits and technicality should be avoided as possible.
' Arguments heard and record perused.
4. Perusal of record reveals that the matter is pending before the Trial Court since year 2007. Issues were framed on 10.4.2007 and thereafter the petitioners were directed to record their statement in support of their plaint. Since 21.9.2011 petitioners failed to record their statement and last opportunity with notice under Order 17, Rule 3, CPC was given to the petitioners to produce complete evidence. Despite notice the petitioners failed to honour the Court order, therefore, there left no option for the Court but to dismiss the suit of the petitioners by invoking the provision of Order 17, Rule 3, CPC.
5. It is well-settled law that if proceedings were taken under Order 17, Rule 3, CPC and order was made on persistently failure of plaintiff to produce their evidence, the Courts under the circumstances can dismiss the suit forthwith. It is also well-settled that once the provision of Order 17, Rule 3, CPC was invoked, the order would amount to an appealable decree and remedy available would not lie by moving application to the Trial Court for setting aside order passed. In the case in hand the petitioners whose suit was dismissed under the provision of Order 17, Rule 3, CPC wrongly preferred an application for setting aside the dismissal of suit order. The proper remedy was appeal and not an application for restoration of suit. The learned Trial Court through its order dated 13.6.2012 had rightly dismissed the application for restoration of suit. The appeal filed on 16.7.2012 was not only time-barred but having without fore of law.
6. An order dismissing the suit, under Order 17, Rule 3, CPC, would be deemed to be a Judgment on merits and such decision is obviously appealable. The contention of learned counsel for the petitioners that the learned Trial Court had not delivered a Judgment and had merely passed an order which was not to be followed by decree, is without any force of law and against the Provision of Order 17, Rule 3, CPC. In the case of Shahrd Hussain v. Lahore Municipal Corporation (PLD 1981 SC 474) it has been held by the Hon'ble apex Court that where the plaintiff failed to produce his evidence inspite of notice issued to him, the Trial Court was competent to dismiss the suit under Order 17, Rule 3, CPC. Both the learned Courts below, under the peculiar circumstances of instant case, have rightly non-suited the petitioners by invoking provision of Order 17, Rule 3, CPC.
' In view of what has been observed above, this petition being devoid of any force, is dismissed in limine. Revision in limine.