' ATIR MAHMOOD, J.---By way of filing the instant RSA, the appellant has called in question the vires of judgment and decree dated 21-8-2010 passed by learned District Judge, Hafizabad who dismissed the appeal of the appellant and upheld judgment and decree dated 6-5-2010 passed by learned trial court whereby the suit of the appellant was dismissed in exercise of powers under Order XVII, Rule 3, C.P.C.
2. Briefly stated the facts leading to filing of this Regular Second Appeal, a suit for specific performance of an agreement to sell dated 25-11-2004 regarding property fully described in para 1 of the plaint was filed by the appellant on 28-4-2006 against the respondents with the averments that he had purchased the suit property from the respondents for a consideration of Rs,2,000,000 out of which a sum of Rs,1,125,000 was paid as earnest money. The suit was contested by the respondents by filing written statement. Out of divergent pleadings of the parties, issues were framed by the trial court. Vide judgment and decree dated 6-5-2010, learned trial court by invoking provisions of Order XVII, Rule 3, C.P.C. Proceeded to close the evidence of the appellant-plaintiff and dismissed his suit for want of evidence. The learned Additional District Judge, Hafizabad vide judgment and decree dated 21-8-2010 dismissed the appeal preferred by the appellant against judgment and decree dated 6-5-2010. Both the said judgments and decrees have been challenged by the appellant in this RSA.
3. Learned counsel for the appellant inter alia contends that provisions of Order XVII, Rule 3, C.P.C.
Are permissive and discretionary in nature and not mandatory, as such, these should be used in exceptional cases; that the appellant before closing of his right to adduce evidence was entitled to be issued at least one notice but no such notice was issued to him; that as the defendants had not denied the execution of the sale agreement, the trial court, even after closing right to produce evidence of the plaintiff, was required to pass a judgment on the basis of available material and after affording opportunity of hearing to the appellant-plaintiff which was not done; that if the appellant was not present before the court on the fateful date, the trial court at the most should have dismissed the suit for want of prosecution rather than exercising its powers under Order XVII, Rule 3, C.P.C.; that adjournments sought by any party and not opposed by the other side are ordinary adjournments and do not call for invoking of provisions of Order XVII, Rule 3, C.P.C.; that the cases should be decided on merit and the technicalities, whatsoever, be ignored to meet the ends of justice; that after non-denial of the execution of the agreement to sell in question, there was a case prima facie in favour of the appellant but this fact was ignored by learned courts below; that the appellant's brother who was initially pursuing the case of the appellant was brutally murdered, due to which the appellant remained in shock for a number of months and could not pursue his case; that there is no negligence on the part of the appellant and if any it is on his counsel; that the appellant is a bona fide purchaser of the suit property and has, prima facie, an arguable case and balance of convenience also lies in his favour; that the judgments and decrees of learned courts below are against the law and fact and suffer from glaring contradictions; that the learned courts below have failed to apply their judicious mind; that the impugned judgments and decrees are perverse, arbitrary and contrary to the facts of the case, therefore, this appeal be allowed, the impugned judgments and decrees be set aside and the case be remanded to the trial court for decision afresh. In support of his assertions, learned counsel for the appellant has relied upon the law laid down by the Hon'ble Supreme Court of Pakistan in cases reported as PLD 1969 SC 270 (Muhammad Haleem and others v. H.H. Muhammad Naim and others), 1995 SCM R 773 (Ali Muhammad v. Mst.Murad Bibi), 2008 SCM R 1335 (Muhammad Arshad v. Muhammad Jahanzeb Khan), 2007 SCM R 1269 (Muhammad Ramzan v. Khadim Hussain), 1993 SCM R 2026 (Ghulam Rasool v. Rai Ghulam Mustafa and others), 1993 SCM R 504 (Amanullah Khan and 3 others v. Mst. Akhtar Begum), 1999 SCM R 105 (Zahoor Ahmed v. Mehra through Legal Heirs and others) and 1985 SCM R 585 (Syed Tasleem Ahmad Shah v. Sajawal Khan and others).
4. On the other hand, learned counsel for the respondents has vehemently opposed this R.S.A. And controverted the arguments advanced by learned counsel for the appellant. He avers that sufficient opportunity was granted to the appellant-plaintiff to produce the evidence but he has failed to do so, therefore, the learned trial court was justified to invoke the provisions of Order XVII Rule 3 C.P.C. And dismissed the suit of the appellant-plaintiff. Learned counsel maintains that the impugned judgments and decrees do not suffer from any illegality, therefore, this RSA having no merit be dismissed. He has relied upon the law laid down by the Hon'ble Supreme Court of Pakistan in cases reported as PLD 2003 SCM R 180 (Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others), 2005 SCM R 1673 (Abdul Shakoor and others v. Province of the Punjab and 4 others), 2003 SCM R 797 (Fateh Sher v. Muhammad Zubair), 2008 SCM R 322 (Zahoor v. Election Tribunal, Vehair and others), 2005 PSC 1118 (Mst.Hurmat Bibi v. Lt. Col. Muhammad Bukhsh Soobi), PLD 2004 SC 489 (Barkat Ali v. Muhammad Nawaz) and 2010 SCM R 1422 (Tasleem Khan v. Sher Ghulam and others).
5. I have heard the arguments advanced by learned counsel for the parties and also perused the record.
6. The contentions raised before this Court are mainly based on the legal question as fo whether trial court was legally justified to close the evidence of the appellant-plaintiff or not. Relevant provisions are Order XVII Rule 1(3), C.P.C. (High Court Amendments Lahore) and Order XVII Rule 3, C.P.C. Which are reproduced below:-- ' Order XVII Rule 1 (3), C.P.C. (High Court Amendments - Lahore)
"Where sufficient cause is not shown for the grant of an adjournment under sub-rule (1) the Court shall proceed with the suit forthwith."
' Order XVII Rule 3, C.P.O "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."
' From plain reading of above said provisions, it is spelt out that these provisions are of directory in nature as no penalty has been imposed upon non-production of, evidence. The words "proceed to decide the suit forthwith" suggest that the court may decide the case on the same day and it is for the court to proceed with the matter pending before it in accordance with law on the basis of material available on record. As per law laid down by the Hon'ble Supreme Court of Pakistan in case A reported as 1985 SCM R 585 (Syed Tasleem Ahmad Shah v. Sajawal Khan and others), the provisions of Order XVII Rule 3, C.P.C. Are applicable when on the date previous to the date of final order, an adjournment was sought by the petitioner but no objection was made to the adjournment by the other party, then it cannot be presumed that the adjournment was granted on behalf of the party who sought adjournment. Relevant paragraph of the said judgment is reproduced below:-- "In the particular case before us we find that the adjournment had been requested for by the petitioner and the request was made on his behalf by his counsel. The respondents had not objected to it. This would not amount to granting time to him at his request."
The order dated 27-4-2010, i,e, the order of date previous to that of final order passed by the trial court, shows that a request for adjournment was made by learned counsel for the appellant which was not objected to by the other side and the case was adjourned to 6-5-2010 when both the learned counsel for the parties put appearance before the court. The trial court without taking into consideration that on the previous date of hearing, no objection was raised by the other party invoked provisions of Order XVII, Rule 3, C.P.C. And straight away dismissed the suit of the appellant-plaintiff without giving its issue-wise findings. In my view, it was mandatory for the trial court to decide the case on the basis of the material available on record and give its findings issue-wise while reaching a just and proper conclusion but no such exercise was done by the trial court which warrants for interference by this Court in its appellate jurisdiction.
7. As regards, the objection raised by learned counsel for the respondents that even if the provisions of Order XVII Rule 3, C.P.C. Are not attracted but in the presence of Order XVII Rule 1(3), C.P.C. (High Court Amendments -Lahore), as no sufficient cause was shown by learned counsel for the appellant, therefore, the trial court was justified to close evidence of the appellant and decide the suit forthwith is of a bit hyper-technical nature. The afore-noted amendment made by Lahore High Court is not to be read in isolation rather it is to be read along with Sub-rule (1) of Order XVII, C.P.C. As there is no specific reference with closure of the evidence of the parties therein but as regards Rule (3) of Order XVII, C.P.C., it is very much specific regarding the evidence. His reliance upon PLD 2003 SCM R 180 (Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others) is also distinguishable on facts. In the said case, neither the plaintiff and his witnesses nor his counsel was present but in the instant case, learned counsel for the appellant was present before the court who requested for grant of an adjournment, therefore, the court below was not justified to close right of evidence of the appellant. It is always preferable to decide the case on merits rather than on technicalities.
8. In view of what has been discussed above and while relying upon the dictums laid down by the august Supreme Court in case 1985 SCM R 585 (supra), this appeal is allowed, the impugned judgments and decrees are set aside and the case is remanded to learned trial court with the direction to decide the suit of the appellant afresh on merit after affording him one last and final opportunity to produce his evidence. In case, the appellant fails to produce his evidence on the date fixed by the trial court for the very purpose, the trial court may proceed with the matter in accordance with law.