' MUHAMMAD DAUD KHAN, J.---- This revision petition is directed against the judgment dated 29.1.2013 passed by learned Civil Judge-II, Tangi and judgment dated 23.11.2013 passed by learned Additional District Judge Charsadda whereby the former dismissed the suit of petitioners/plaintiffs with cost under Order XVII, Rule 3, C.P.C. While the latter maintained the judgment of trial Court.
2. Brief facts of the case are that petitioners/plaintiffs filed Suit No,73/1 for declaration, permanent injunction against the respondents/ defendants in respect of considerable land fully described in the heading of the plaint which was contested by respondents/defendant through filing written statements. From divergent pleadings of the parties, necessary issues were framed and after recording of examination-in-chief of witnesses of petitioners/plaintiffs, the petitioners were directed to produce rest of evidence and notice under Order XVII, Rule 3, C.P.C. Was also issued to the petitioners for 29.1.2013. On said date, plaintiff No,1 was examined whereas due to non- production of rest of evidence, the learned trial Court dismissed the suit of petitioners/plaintiffs under Order XVII, Rule 3, C.P.C. With cost vide judgment and decree dated 29.1.2013. Feeling aggrieved from the same, the petitioners/plaintiffs preferred appeal which was also dismissed by the appellate Court vide judgment and decree dated 23.11.2013. Hence, the instant petition has been filed by the petitioners/plaintiffs against the said order and judgment..
3. Arguments heard and record perused.
4. Perusal of material available on file reveals that in the instant case the evidence of petitioners remained present on so many dates i.e,, 27.6.2012, 6.9.2012, 13.9.2012, 2.11.2012, 16.11.2012. They produced their witnesses and the learned trial Court recorded their examination-inchief but their cross-examination was reserved due to absence of counsel for defendants or otherwise. Similarly on 9.1.2013 the case was adjourned due to strike of local bar whereas on 14.1.2013 and 18.1.2013 the learned Presiding Officer of the Court was on leave and the case was adjourned on Note Reader due to which evidence could not be summoned. On the next date i.e, 23.1.2013, petitioners were directed to produce their evidence and notice under Order XVII, Rule 3, C.P.C. Was also maintained by adjourning the case without giving any specific date. Though on 29.1.2013, plaintiff No,1 was present in other case, recorded his statement in the instant case and for cross-examination of Attorney of petitioners, adjournment was sought but the learned trial Court did not bother to afford an opportunity for production of said witness by imposing cost on the petitioners or he could close the evidence of petitioners and direct the respondents/defendants for production of their evidence but he straight away dismissed the suit of petitioners. The learned trial Court had the -option of closing evidence of petitioners and fixing the case for defendants' evidence but straight away, dismissed the suit of the petitioners.
5. If it is assumed that Order XVII, Rule 3, C.P.C. Is applicable then the learned trial Court is required to pronounce the judgment based findings issue-wise on the basis of available evidence on record and had no jurisdiction to dismiss the suit straight away in a slipshod manner. The Hon'ble Supreme Court of Pakistan in case titled, Muhammad Aslam v. Nazir Ahmad reported in 2008 SCM R 942, while elaborating the phrase. "proceed to decide the suit forthwith" held as under:- "It may be pointed out here that though under Order XVII, Rule 3, C,P.C., it has been provided that where sufficient cause is not shown for the grant of adjournment the Court may proceed to decide the suit forthwith" but the words used in the provision in question "proceed to decide the suit forthwith" do not mean to decide suit forthwith" or "dismiss the suit forthwith". The said rule simply lays down that the Court may proceed with the suit notwithstanding either, party fails to produce evidence etc, meaning thereby that in case of default to do a specific act by any party to the suit, the next step required to be taken in the suit should be taken. Though the word "forthwith" means without any further adjournment yet it cannot be equated with the words "at once pronounce the judgment as used in Order XV, Rule 4, C.P.C., where, on issuance of summons for final disposal of the suit either party fails, without sufficient cause, to produce the evidence on which he relies. "
6. I find that the learned trial Court has acted in a manner not warranted by law. Order XVII, Rule 3, C.P.C. Does not at all provide that in case evidence is absent on a date then the suit is to be decided gainst the party by way of penalty. On the other hand Order XVII, Rule 3, C.P.C. States that where the evidence is absent; then the Court is to proceed with the suit.
7. It is settled principle of law that the law favour the decision of a 'us' on merits without making the technicalities of law as hurdles in the way of doing substantial justice between the parties. No doubt, the petitioners failed to produce their evidence, despite the fact, that some chances were given to them but this Court thinks that proceeding under Order XVII, Rule 3, C.P.C. Was not proper for such default when the delinquent could adequately be punished by imposition of cost particularly when prior to said date, the Presiding Officer was on leave on two dates and due to Note Reader, the evidence could not be summoned but even then the plaintiff No,1 recorded his statement on the date fixed so an opportunity should have been granted to the petitioners but the learned trial Court straightaway dismissed the suit vide impugned order without giving issue-wise findings, which is not permissible under law.
8. For what has been discussed above, the instant petition is allowed, the orders of both the learned Courts below are hereby set aside, the suit of petitioners/plaintiffs is restored and the case is sent back to the learned trial Court with the directions to record rest of ,evidence of plaintiffs without any adjournment and after completion of trial, decide the case on merit in accordance with law within three months from the date of receipt of case file.