' AMIN-UD-DIN KHAN, J.---Through this appeal, the appellant has challenged the judgment and decree dated 11.3.2010 passed by the learned Senior Civil Judge, Khanewal whereby suit for specific performance filed by the plaintiff-appellant after applying penal provisions of Order XVII Rule 3 of the C.P.C. Has been dismissed.
2. Learned counsel for the appellant argues that suit for specific performance was filed on 1.3.2006 on the basis of agreement to sell dated 30.01.2006. Written statement was filed. Suit was contested.
Learned trial court on 15.12.2006 framed the issues and case was adjourned for the evidence of the plaintiff fax 15.1.2007. On 15.1.2007 evidence was not available and the lawyers were also observing strike. Thereafter, an application for impleading defendant No, 4 was filed and various other applications were also filed by the parties and subsequently on 12.2.2010 when the case was fixed for the evidence of the plaintiff, learned court observed that the issues are not available on the file, therefore, Ahlmad was directed to trace the same and annex the issues with the file and next date was fixed for 22.2.2010 and on which date the learned trial court noted that the issues have been traced and annexed with the file, therefore, case was adjourned to 11.3.2010 for the evidence of the plaintiff. On 11.3.2010 penal provisions of Order XVII, Rule 3 of the C.P.C. Were applied and after closing the right to produce evidence of the plaintiff the suit was dismissed. Hence, this first appeal.
3. Learned counsel for the appellant argues that the date fixed i,e, 11.3.2010 was not on the request of the plaintiff-appellant. Further that no warning was given to the plaintiff and that no question of objection by the defendant for fixation of the said date as previous to 11.3.2010 i,e, 22.2.2010 was not a date for recording of evidence. Further argues that on 10.3.2010 plaintiff-appellant was confined in the jail in connection with case FIR. No, 183 of 2009 dated 29.10.2009 under section 365-B, 381-A, 376, P.P.C. Registered at Police Station Makhdoompur District Khanewal and certified copy of the bail granting order dated 1.7.2010 passed in Criminal Misc. No, 706-B of 2010 titled "Muhammad Nawaz v. The State etc." by this Court has been placed on record whereby it was ordered that present appellant be released on bail. While relying upon "Muhammad Bashir v. Muhammad Raman and another" (2008 CLC 252), Javaid Akhtar Nawaz v. Mehr Kabir" (1990 CLC 1122), "Bagh-e- Rehmat Trust v. Khalid Riaz" (1985 CLC 3009), "Mubashir Khan v. Javaid Kamran alias Javed lqbal and 8 others" (2007 M LD 1072). "Qutab-ud-Din v. Gulzar and 2 others" (PLD 1991 Supreme Court 1109) and "Sheikh Khurshid Mehboob Alam v. Mirza Hashim Bain and another" (2012 SCM R 361) prays for acceptance of the appeal and remand of the case after setting aside the impugned judgment and decree.
4. On the other hand, learned counsel for the respondents states that on the last date of hearing the evidence was not available, therefore, states that the learned trial court has rightly invoked the penal provisions of Order XVII, Rule 3 of the C.P.C. Prays for dismissal of the appeal.
5. We have heard learned counsel for the parties and gone through the record with their able assistance.
6. No-doubt, the issues were framed on 15.12.2006. Except on 15.1.2007 the date was fixed for evidence, thereafter the case was adjourned for hearing the parties with regard to miscellaneous applications or the learned Presiding Officer was not available. In these circumstances, in view of the history of the case noted supra, invoking of penal provisions of Order XVII, Rule 3 of the C.P.C.
Was not justified in the light of case law referred by learned counsel for the appellant noted supra.
Though there is minor liability upon the plaintiff-appellant also when on the dates given to him for production of evidence, he has not produced the same without any justifiable reason, therefore, to compensate the other side we allow this appeal subject to cost of Rs, 10,000/- (Rupees ten thousand only) and the impugned judgment and decree as well as order of invoking of penal provisions of Order XVII, Rule 3 of the C.P.C. Are set aside. The parties are directed to appear before the learned trial court on 16.11.2015. Cost will be paid by the appellant on the next date of hearing and learned trial court is directed to give two opportunities to the plaintiff-appellant for production of complete evidence.