' MASUD ABID NAQVI, J.---Brief facts of this appeal are that appellants/ applicants/claimants filed an application for recovery of policy proceeds in the sum of Rs,25,000,000/- along with liquidated damages under section 118 of Insurance Ordinance 2000 wherein the respondents filed written statement and out of divergent pleadings of the parties issues were framed on 16.06.2009 and evidence was called. Thereafter, despite availing number of opportunities, appellants/claimant could not produce evidence whereupon their right to produce evidence was closed and the application of the appellants was dismissed under Order XVII, Rule 3, C.P.C. Vide order dated 22.02.2013. Aggrieved by the said order, the appellants have filed instant first appeal against order and challenged the same.
2. We have heard the arguments of learned counsel for the parties and perused the record.
3. Perusal of record reveals that evidence of the appellants/applicants was not available on dates fixed by the court for Production of applicants/appellants evidence. After granting ample opportunities to the appellants/applicants to produce their evidence, the trial court adjourned the case on six (06) to produce evidence i.e, 12.10.2009, 14.11.2009, 25.03.2919, 20.10.2012, 08.12.2012 and 26.01.2013. However, the applicants/ appellants failed to adduce their evidence and ultimately their right to produce evidence was closed and the application was dismissed for non-prosecution and for want of evidence on 22.02.2013. The issues were framed on 16.09.2009 and the application was dismissed on 22.02.20113. During the period of more than three years and despite availing several opportunities, applicants/ appellants failed to examine even a single witness which conduct amounts to abuse of process of court. Learned counsel for appellants has not been able to point out any unavoidable/compelling circumstances or reasonable grounds due to which they could not produce evidence or justification for further opportunity despite availing ample opportunities, so they are not entitled to any relief. The appellants' case squarely falls within the mischief of the Order XVII, Rule 3, C.P.C. And their right of evidence was rightly closed by the learned trial court and the application was dismissed for the lack of proof vide order dated 22.02.2013. In a case reported, as Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others (2014 SCM R 637), the Honourable Supreme Court has held as under:-- we are of the candid view that provisions of Order XVII, Rule 3, C.P.C. Are penal in nature and as per the settled law such provisions should be strictly construed and applied, therefore, once the case of a delinquent litigant squarely falls within the purview and mischief of the law (ibid) then neither any concession should be shown to such litigant nor a lenient view favouring him should be resorted to; this should not even be permissibly done on the touchstone of exercise of discretionary power of the court and/or on the approach that technicalities of procedure should not be allowed to impede the interest of justice, and/or that the litigants should not be knocked out on technical grounds, and that adversarial lis should be settled on merits. If such approach is liberally followed and resorted to there shall be no discipline in the adjudication of the civil litigation and the delinquent whose case though is squarely hit and covered by the penal provisions of Order XVII, Rule 3, C.P.C. Would be given a chance to his advantage and to the disadvantage of his opposing side.. This is not the spirit of the law at all. It may not be out of place to mention here that to apply and to adhere to law is not a mere technicality, rather it is duty cast upon the court as per Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 to do so.
Thus where Order XVII, Rule 3, C.P.C. Is duly attracted, the court has no option except to take action in accordance therewith."
4. In view of the foregoing discussion, we are of the affirmed view that learned trial court has rightly proceeded in the matter while dismissing application of the appellants. The impugned order does not suffer from any infirmity, legal or factual, requiring interference, therefore, this appeal is dismissed.