' SHAHID MUBEEN, J. --- Briefly facts of the case are that the appellant/plaintiff instituted a suit for specific performance on the basis of agreement to sell dated 07.03.2007 regarding land measuring 270 Kanals out of total land measuring 3153 Kanals, 17 Marlas fully described in the head note-of the plaint. This land is situated in Mouza Fatehullah, Tehsil Hasanabdal, District Attock. The rate of disputed land was fixed @ Rs. 21,000/- per kanal. He paid Rs. 25,00,000/- on 07.03.2007 through Bank Draft and thereafter he paid Rs. 10,00,000/- on 02.05.2007. He again paid. Rs. 10,00,000/- cash on 03.09.2007 and got signatures of respondent/defendant. In this way he paid totally Rs.
45,00,000/- to the respondent. According to the terms and conditions of the agreement to sell respondent was bound to transfer the suit land till 07.06.2007 afterreceiving remaining consideration of Rs. 11,70,000/- but he denied which led to the institution of the present suit. The respondent/defendant denied the execution of agreement to sell and alleged that it is based oh fraud. He prayed for dismissal of the suit. Out of divergent pleadings of the parties, following issues were framed on 27.02.2009:---
(1) Whether the plaintiff is entitled to get decree for specific performance of agreement dated 07.03.07 regarding land 270 kanal on the basis of grounds set out in the plaint? OPP.
(2) Whether the plaintiff is entitled to get decree as prayed for on the basis of ground set out in the plaint? OPP.
(3) Whether the plaintiff has no cause of action to file this suit, hence the same is liable to be dismissed? OPD.
(4) Whether the plaintiff is estopped by his words and conduct to bring this suit and the same is liable to be dismissed? OPD.
(5) Whether the suit is bad due to non joinder of necessary parties and the same is liable to be dismissed? OPD.
(6) Relief.
' The case was fixed for recording of evidence of appellant/plaintiff on 16.4.2009. Vide order dated 26.1.2010, the evidence of the appellant/plaintiff was closed while applying provision of rule 3 of Order-XVII, CPC and the suit was dismissed for want of evidence vide impugned judgment and decree dated 26.01.2010.
2. It is contended by learned counsel for the appellant/plaintiff that on last date i.e. 23.12.2009, the case was not adjourned on his request. On that date examinationin-chief of three witnesses of appellant/plaintiff were recorded and request was made by the respondent/defendant to adjourn the case for cross-examination then the case was adjourned for cross-examination for 26.1.2010. It appears from order dated 26.1.2010 that the remaining part of the order had been dictated later on with the remarks that no further opportunity will be given as it is a direction case and the appellant/plaintiff and witnesses were directed to appear on the said date.
On the fateful date i.e. 26.1.2010 the suit was dismissed while applying provision of rule 3 Order XVII, CPC.
3. On the other hand, learned counsel for the respondent/defendant supported the impugned judgment and decree. Now it is to be seen by this Court whether provision of rule 3 of Order XVII of CPC has been correctly applied by the Court or not? To better appreciate rival contentions of the parties it will be conducive to reproduce the provision of rule 3 of Order XVII of CPC as under:- "3. Court may proceed notwithstanding either party fails to produce evidence, etc.---Whether 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."
5. Now order dated 23.12.2009 is also reproduce herein below:--- {{URDU TEXT}}
6. It is evident from the bare perusal of order dated 23.12.2009 that no request was made by the appellant/plaintiff on the said day, whereas the statement of three witnesses of the appellant/plaintiff were recorded. It was the respondent/defendant who requested to adjourn the case for cross-examination of the witnesses produced by the appellant/plaintiff. In such-like situation when the case has not been adjourned on the request of appellant/plaintiff the provision of rule 3 of Order XVII of CPC cannot be invoked. Reference may be made to case-laws titled as "Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others" (PLD 1971 Supreme Court 434), "JINDWADDA and others v. Abdul Hamid and another" (PLD 1990 Supreme Court 1192), "Qutab-ud- Din v. Gulzar and 2 others" (PLD 1991 Supreme Court 1109). Even otherwise, for the sake of argument, it is presumed that adjournment has been made by the appellant/plaintiff even then the adjournment has not been opposed by the other side, hence, the provision of rule 3 of Order XVII of CPC cannot be applied. Reference may be made to case-law titled as "Syed Tasleem Ahmad Shah v. Sajawal'Khan etc. (1985 SCM R 585) and "Shamshad Khan and another v. Arif Ashraf Khan and 2 others" (2008 SCM R 269). The order dated 23.12.2009 has been passed by the Civil Judge, Attock in a slipshod manner, without applying Df judicious mind perhaps due to the fact that it was a direction case. In such-like situation, instead of closing evidence of the appellant/plaintiff the Court should seek extension for decision of the case but in no way it was lawful for the Court to close evidence and dismissed the suit while applying provision of rule 3 of Order XVII of CPC. Reference may be made to case-law titled as "Pervaiz Afzal and others v. Sh. Hussan Ali and another" (1994 CLC 951) and "Mst. Kaniz Fatima v. Ghulam Mustafa" (1994 M LD 174).
4. For what has been discussed above, the impugned judgment and decree dated 26.01.2010 based on order dated 23.12.2009 is nbt sustainable in the eyes of law, hence, this appeal is allowed and impugned judgment and decree dated 26.01.2010 is set aside. The case is remanded to the learned District Judge who shall assign the same to the Court of competent jurisdiction and the transferee Court shell decide the suit within a period of three months after receipt of file, positively. No order as to costs.
R.F.A. Allowed/.