' SYED MUHAMMAD FAROOQ SHAH, J.--- Precise background of filing the captioned Revision Application is that Suit No, 393/2002 for recovery of outstanding balance of deposit of money of Rs,500,000/- with claim of damages amounting to Rs,25,00,000/- and for permanent injunction, instituted in High Court of Sindh, at Karachi, was transferred to the Court of 1st Senior Civil Judge for want of pecuniary jurisdiction, where a new Civil Suit No,1260/2002 was allotted. A perusal of record reflects that the said Suit was dismissed under Order XVII, Rule 3, C.P.C. Along pending applications vide judgment pronounced on 27.01.2010. The issues framed by the trial Court were as under:- ' No,1 Whether the Suit as framed is maintainable?
' No, 2 Whether the plaintiff is entitled for the relief's claimed? No, 3 What should the decree be?
2. Without adverting to the merits or demerits on factual aspect of the case or on legal grounds raised before the trial Court, the issues Nos.1 and 2 were decided to be not proved due to failure of plaintiff to step into witness box to adduce his evidence; consequently, the suit was dismissed under Order XVII, Rule 3, C.P.C. Application under Order IX, Rule 4 read with Section 151, C.P.C. For recalling the aforesaid order was dismissed on the ground that only remedy available is an appeal against the decision under Order XVII, Rule 3, C.P.C., hence the application was disposed of vide order dated 02.02.2010. Record reflects that the application filed by the plaintiff under Section 12(2), C.P.C. Read with Section 151, C.P.C. To set-aside the judgment and decree dated 27.01.2010 was also dismissed by a short and brief order dated 20.02.2010. An appeal preferred against the judgment dated 27.01.2010 in Suit No,1260/2002 was also dismissed by impugned order dated 25.09.2014.
Perusal of record further reveals that the plaintiff has approached High Court of Sindh at Karachi, by filing C.P. No,D-437/2010 and on its dismissal; filed C.P. No,82-K/2013 before Hon'ble Supreme Court, which was also dismissed as not pressed when Counsel for the petitioner stated that he will file the appeal along an application under Section 14 of the Limitation Act, 1908. Consequently, the plaintiff has preferred Civil Appeal No,136/2013 along application under Section 14 of the Limitation Act, supported with affidavit of partner of applicant/plaintiff. Vide impugned judgment, the appeal hopelessly time barred was also dismissed on the sole ground of being barred by time. On dismissal of appeal vide judgment dated 25.09.2014, the plaintiff/applicant has directed the instant Revision Application, praying therein to set-aside the judgment dated 25.09.2014 and decree passed in Civil Appeal No,136/2013 by the learned 1st Senior Civil Judge Karachi (West) on the facts and grounds averred in it.
3. Arguments heard. Record perused.
4. Mr. Ameeruddin Ansari, learned Counsel representing the applicant argued that the learned Appellate Court did not bother to peruse and consider accompanying affidavit of application, filed under Section 14 of the Limitation Act, 1908, wherein the applicant/plaintiff stated that by mistake the date of hearing of evidence was noted as 29.01.2010 instead of 27.01.2010, when the suit was dismissed on account of non-appearance of the applicant/plaintiff and his advocate, though the noting of date of hearing in the diary for 29.01.2010 was due to inadvertent bona fide mistake, therefore, non-appearance of plaintiff and his advocate on 27.01.2010 was neither intentional nor deliberate. Thereafter, an application under 0.9, Rule 7 was' filed on 01.02.2010 but the said application was dismissed by the trial Court. Another application under section 12(2), C.P.C. Has also been dismissed on similar ground of availability of only remedy in appeal. Review application filed under Section 114, C.P.C. Against the said order was also dismissed by the appellate Court vide order dated 23.12.2011. Learned Counsel further argued that bona fide mistake in noting the date in the diary as 29.01.2010 instead of 27.01.2010 was a bona fide mistake and thereafter the applicant/ plaintiff was perusing the matter on the wrong forums instead of filing appeal against the judgment and decree passed by 1st Sr. Civil Judge, Karachi (West) but the learned Appellate court though framed the points for determination of non-maintainability of appeal being time barred but did not consider factual aspect of the case stated on oath. Learned Counsel next contended 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 it does not mean that the Court to dismiss the Suit forthwith as in case of default to adduce evidence, the next step is required to be taken in the suit should be taken. To support his contention, learned Counsel placed reliance on the case, reported as 2008 SCM R 942. Learned Counsel has also placed reliance on PLD 1987 SC 447 and 2001 SCM R 424. Learned Counsel, by reiterating his contention, submitted that petition filed by the applicant before the Hon'ble Apex Court was dismissed as not pressed after making statement by him to prefer an appeal against the order passed by the learned 1st Senior Civil Judge, Karachi (West), under Order XVII, Rule 3, C.P.C., because the appeal is maintainable against the said order and the petitioner was perusing his remedy before the wrong forum and that the plaintiff will file the appeal along application under Section 14 of the Limitation Act, 1908. Mr. Aminuddin, representing the applicant submitted that the appeal has been dismissed being time barred on the sole ground of inordinate delay of 3 years and 3 months without adverting to the merits of the case. It is next submitted that the merits of the judgment delivered by the original Court have not been considered by the Appellate forum; more particularly, contents of accompanying affidavit of application under Section 14 of the Limitation Act have also not been discussed or considered, therefore, the appellate judgment is coram-non- judice and inoperative; Bar of limitation in such exceptional circumstances looses significance as held in reported judgment of Apex Court, 2002,SCM R 122. Counsel while placing reliance on the following citations of Hon'ble Apex Court, submitted that the law by now is formally settled that no person can be condemned unheard as regards any matter in which he has any interest and that the technical objection should not come in the way of dispensation of complete and substantial justice. Reliance is being placed on PLD 2004 Kar. 652, PLD 2002 SC 408, 2004 SCM R 1611 Su'awal Khan v. Wali Muhammad and others 2002 SCM R 134 Chudhury Ghulam Ghaus through Legal Heirs v. Saifullah and another 2001 SCM R 159 Imran Shareef and 7 others v. Muhammad Din and another 2000 SCM R 440.
5. Mr. Ansari, argued that the learned Appellate Court did not apply his judicious mind to the facts and law mentioned in the appeal and on the application filed under Section 14 of the Limitation Act, hence the learned 1st ADJ Karachi (West) violated principle of 'audi alteram partem, and also violated Articles 4 and 10(A) of the Constitution of Pakistan as the judgment and decree passed under Order XVII, Rule 3, C.P.C. By 1st Sr. Civil Judge is based on no evidence recorded and has not been passed on the basis of pleadings i,e, suit plaint and written statement of defendant, therefore such order of trial Court is ab-initio illegal, void, thus nullity in the eyes of law and not relevant, hence the judgment and decree of the Courts below are not tenable in law and are liable to be set-aside.
6. Conversely, Mr. Muhammad Shareef, learned Counsel for the Respondent No,1 argued that dispute between the parties should be produced before the arbitrator, instead the applicant filed revision application before the District Judge against judgment under Order XVII, Rule 3, C.P.C., and the appeal before the High Court were dismissed and the petition filed before the Apex Court was also dismissed being not pressed. Learned Counsel submits that inordinate delay of filing the appeal after more than three years' period is hopelessly time barred. Learned Counsel supported the impugned judgment.
8. Insofar as dismissal of Civil Suit No,1260/2002 under Order XVII, Rule 3 is concerned, the judgment delivered in the said suit on 27.01.2010 reflects that the suit was dismissed when the plaintiff has failed to step into witness box to adduce his evidence, without dilating upon the merits of the case as averred in the pleadings of the parties. Order XVII, Rule 3 of the Code of Civil Procedure is permissible and not mandatory, hence Court was supposed to proceed to decide the suit on merits in light of entire material on record and after hearing arguments of the parties. Apparently, judgment has been delivered by the Original Court, hurriedly, in a slipshod manner. It is now settled that law leans adjudication on merits and not on mere technicalities as the interest of justice requires the decision to be passed on merits. In the case of Amanullah Khan and 3 others v. Mst. Akhter Begum (1993 SCM R 504), the Hon'ble Apex Court held that the requirement of law is the Court has to decide the case, which means that material and evidence brought on the record is to be considered in order to decide the Suit.
Paragraph-6 of the cited ruling reads as under:- "On the legal plane it appears that Order XVII, Rule 3, C.P.C. Contemplates that when any party fails to produce evidence, the Court may notwithstanding such default, proceed to "decide" the suit forthwith. According to dictionary words "to decide" mean "settle (question, issue, dispute) by giving victory to one side; give judgment (between, for, in favour of, against), bring come to a resolution". "Decision" means "settlement, conclusion, formal judgment, making up one's mind".
Word "decision" came up for examination in the case of Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 and it was held that "decision" means judicial determination in accordance with evidence before the Court. Coming back to Order XVII, Rule 3, C. P. C. The requirement of the law is that the Court has to decide the suit which means that material and evidence brought on the record is to be considered in order to decide the suit. In the instant case evidence of the plaintiff was recorded and from issues in several burden was put on the plaintiffs. Side of the defendants was closed. As they failed to bring their witnesses on the date of hearing. In the circumstances it was mandatory for the Court to have examined the evidence brought on the record. It was not proper to have decreed the suit straightaway without examination of evidence brought on the record".
9. It is not out of context to .Mention here that under the relevant provision of law on the failure of a party to produce its evidence or to do any act necessary for which the time had been allowed to him, the Court shall proceed to decide the Suit forthwith. Provision of Order XVII, Rule 3, C.P.C. Are penal in nature and in order to attract such penal provisions, time must be granted by the trial Court to a party for doing certain acts; such as to produce evidence to cause attendance of their witnesses or to perform any other act necessary to the further progress of a suit. Said provisions require that time must be granted by the trial Court at the request of defaulting party and if time had not been granted at the instance of a party against whom order was required to be made then the penal provisions of Order XVII, Rule 3 would not be applied. In the instant case, it has been stated that due to inadvertent, mistake, the plaintiff and his Counsel did not show their appearance before the Court for recording evidence of the plaintiff, which was not a deliberate act and the Court without dilating upon the merits of the case dismissed the suit. Conduct of the plaintiff reveals that his non-appearance before the trial Court for recording his evidence on specific date i,e, 27.01.2010 was not deliberate. Dictates of justice demand that matters should be decided on merits rather than on technical knockouts, therefore, the plaintiff in the present case, with his conduct deserves indulgence and equity.
10. It is pertinent to mention here that, if at all, the case falls within the ambit of Order XVII, Rule 3; it is incumbent upon the Court to decide the case on merits, provided there is sufficient material on record to decide the same. However, reasons of Issues Nos.1, 2 and 3 recorded by the trial Court do not show discussion of material from pleadings of the parties, excepting dismissal of suit due to failure to adduce evidence by the plaintiff, without adverting to the merits of the case. It is stated by the plaintiff, in his affidavit, that non-appearance as well as nonattendance of his Counsel for recording evidence on 27.01.2010 was neither deliberate nor willful as it was due to inadvertent noting of date after two days i,e, 29.01.2010. It is an admitted position that the judgment under Order XVII Rule 3 has been pronounced by the trial Court without affording opportunity of hearing or arguments to the parties and their Counsel and on dilating upon the material available on record.
The trial Court did not determine, which party was right as the said decision was not rendered on the basis of evidence and facts introduced, therefore, the judgment based solely on procedural error i,e, without discussing the merits of the case, cannot be termed a judgment on the merits. The said rule simply lays down that the Court may C 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 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. As it is binding upon the trial Court insofar as the status of some particular thing or subject matter is concerned to dilate on merits. The judgments pronounced by both Courts below in the instant matter are prima facie "void" as invalidity of judgments is apparent upon inspection of judgments. It is an admitted position that contents of the supporting affidavit along application under Section 14 of the Limitation Act have not been discussed or considered by the Appellate Court. In the circumstances, the impugned order recorded on 25.09.2014 in Civil Appeal No,136/2013, whereby the appeal was dismissed on the sole ground being time barred is not tenable in law as it is well settled that without essential features for assumption of jurisdiction or contravened by forum exercised powers not vested in it, or exceeds authority beyond limits prescribed by law, the judgment is rendered coram-non-judice and inoperative, therefore, the question regarding bar of limitation in such exceptional case looses significance as held by the Hon'ble Supreme Court in the cases reported as 2002 SCM R 122-PLD 2004 Kar. 652-PLD 2002 SC 408-2004 SCM R 1611-. In the case reported as 2004 SCM R 1611, it has been held as under:- "It is an established principle of law that an act of the Court shall not prejudice any person. This Court has time and again stated authoritatively that technical objections should not come in the way of dispensation of complete and substantial justice. Reliance in this respect is placed upon Sujawal Khan v. Wali Muhammad and others 2002 SCMR 134, Chaudary Ghulam Ghaus through legal Heirs v. Saifullah and others 2001 SCMR 159, Imran Sharif and 7 others v. Muhammad Din and another 2000 SCMR 440."
11. Whatever mentioned above, I reached at the irresistible conclusion that orders passed by both Courts below while delivering judgment dated 27.01.2010, by 1st Sr. Civil Judge, Karachi (West) under Order XVII, Rule 3, C.P.C. In Suit No,1260/2002, and the impugned order passed by Appellate Court dated 25.09.2014, in Civil Appeal No,136/2013, not sustainable in law, are hereby set-aside with decrees; with directions to the 1st Sr. Civil Judge, Karachi (West) to proceed with the Suit No,1260/2002, after providing due opportunity to the parties to produce evidence in accordance with law. Applicant, who is plaintiff in aforementioned suit, is directed to show his appearance along witnesses for recording his evidence on 17.10.2016. Hopefully, the trial Court shall expedite to proceed with the matter, by not granting frequent adjournments, and to decide the suit as early as possible; more particularly, it appears that the said Suit was instituted in the year 2002. Captioned Revision application is disposed of in the manner indicated above. Office to immediately transmit this order along R&Ps to the trial court.