MRS. KAUSAR SULTANA HUSSAIN, J.----Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner submitted following prayers:- A) Set aside impugned order dated 25.5.2019 passed by Respondent No.5, VI1-Additional District Judge Karachi- Central in Civil Revision Application No.18 of 2019 and hold that the order as passed on 1012.2018 by which the suit bearing No.673 of 1996 was dismissed for want of evidence, was legal and cannot be interfered with as well as set aside order dated 28.3.2019 passed by Respondent No.6, V1-Senior Civil Judg e Karachi-Central on application under Order IX, Rule 9, C.P .C.
B) Restrain the Respondent Nab i.e. V1-Senior Civil Judge Karachi-Central to proceed with Suit No. 673 of 1996 i.e. Pazal-ur-Rehman v . K.D.A. and others as being dismissed earlier .
C) Any other relief which this Court may deem fit and proper .
Relevant facts necessary for disposal of instant petition are that the respondent No.1, Late Fazlur Rehman had initially filed a Civil Suit No.322 of 1983 against the petitioner and others before this Court in its original civil jurisdiction, however , it was transferred to the District Court (District Central) Karachi due to change of pecuniary jurisdiction and new number was assign ed to it as Suit No.673 of 1996. The suit of the respondent No.1 was decreed but in appeal it was set aside and remanded back for fresh trial on merits. In second round of litigation the suit of the respondent No.1 was again decreed, which was challenged before first appellate forum, which maintained such judgment of trial Court, hence petitioner approached to this Court, filed Second Appeal No.21 of 2008, which was decided vide order dated 13.3.2018 and by consent of both the side, matter was remanded to District Court and heard by learned III Additional District Judge, Karachi Central and again by consent the matter was remanded to VIth Senior Civil Judge, Karachi Central. The learned trial Court after framing issues on 11.8.2018 fixed the matter for evidence of the respondent No.1 / plaintif f on 25.8.2018, however , evidence of respondent No.1 / plaintif f could not be recorded on such and subsequent date(s) of hearing for one reason or the other on the grounds either of the illness of Counsel for the respondent No.1 or the respondents. It appears that matter was adjourned on 01.09.2018, 6-9-2018, 11-09-2018, 15-09-2018, 22-09-2018, 29-9-2018,2-10-2018, 6-10- 2018, 13-10-2018, 20-10-2018, 27-10-2018, 4-11-2018, 10-11-2018, 17-11-2018, 20-11-2018, 26-11-2018, 1-12- 2018, 4-12-2018, 7-12-2018. Record shows that the respondent No.1 inspite of availing short dates failed to come forward to record evidence except filing affidavit-it-in-evidence on 13.10.2018, thus, on 10.12.2018 the learned trial Court passed the following order : "Despite extending several opportunit ies plaintif f side has failed to get reco rd his evidence. Legal heir of plaintif f is avoiding to record eviden ce. Under the circumstances, this Court has no option except to dismiss the suit in default. Therefore, suit of the plaintif f is hereby dismissed in default. There is no order as to costs."
3. The respondent No.1, then filed an application under Order IX, Rule 9, C.P.C., duly contested by the petitioner , but ultimately the suit of the respondent No.1 was restored. Consequently , the petitioner challenged such order by way of Civil Revision Application No. 18 of 2019, however , he same was dismisse d by the learned Vllth Additional District Judge, Karachi Central vide order dated 25.5.2019, hence this petition.
4. After receiving notice of this petition, one of the legal heirs of respondent No.l. namely Zakir-ur-Rehman has submitted his Counter Affidavit, whereby he has raised few legal objections so also controverted the contents of the petition.
5. Per contents of preliminary legal objections raised by the said Zakir-ur-Rehman, this Court has no jurisdiction to interfere in Revision Order passed by competent Court of law; that the petitioner has come to Court with unclean hands to prolong the matter; that the petitioner concealed material facts; that the petitioner is not an aggrieved party as defined in terms of Article 199((1) of the Constitution and has no locus standi. The legal heir No.1 of respondent No.1 has denied all the contents of the petition being false and misrepresented on the grounds that dismissal in default cannot be presumed under Order XVII, Rule 3, C.P.C. but under Order XVII, Rule 2, read with Order IX and appropriate remedy provided under the law has been availed. He, further submitted that the learned trial Court had dismissed the suit in default for non-prosecution and not for want of evidence. He prayed for dismissal of the petition with compensatory costs of Rs.1,00,000/-.
6. We have heard the learned counsel for both the sides and also have perused the record. The learned counsel for the petitioner while arguing the matter has mainly emphasized on the point, that the suit of the respondent / plaintif f was dismissed for want of evidence, therefore, it may be presumed that the order of dismissal is under Order XVII, Rule 3, C.P.C. and not under Order XVII, Rule 2, C.P.C. as such restoration application under Order IX, Rule 9, C.P .C. was not applicable and the impugned order could only be challenged by way of appeal.
7. On the other hand the learned counsel for the respondent No.1 has argued that the dismissal of suit in default cannot be presumed under Order XVII, Rule 3, C.P.C. but under Order XVII, Rule 2, read with Order IX, C.P.C. as this provision is permissive and directory in nature and penal in action as such rarely to be resorted to in case all provisional prerequisites are met with in strict sense and not otherwise as the word s used in both provisions of law are "may" and not "shall". He prayed for dismissal of the petitioner's petition with cost. In support of his contentions the learned counsel for the respondent No. l's LRs has relied upon the following judgments of Hon'ble apex Court:- i. 2020 SCMR 260 (President, All Pakistan Women Association, Peshawar Cantt v . Muhammad Akbar Awan) ii. 2019 SCMR 919 (Chief Executive MEPCO and others Muhammad Fazil and others) iii. 2017 SCMR 1062 (Muhammad Baqir v . Mst. Ghulam Parwar) iv. 2013 SCMR 1383 (Abdul W ahab and others v . HBL and others) v. 2013 SCMR 1752 (Contempt proceedings against Chief Secretary , Sindh and others) vi. 2013 SCMR 1595 (Hall Muhammad Zaman Khan v . Member BOR Punjab, Lahore and others) vii. 2013 SCMR 1570 (Messrs Anwar T extile Mills Ltd v . Pakistan T elecommunication Company Ltd. and others) viii. 2011 SCMR 279 (Anjuman Fruit Arhtian others v . Deputy Commissioner , Faisalabad and others) ix. 2012 SCMR 656 (Mst. Suraya Parveen v . Mst. Rukhsana Hanif and others)
8. The short legal question, therefore, for consideration in this petition is that, whet her the order of the learned trial Court for dismissal of the suit in default is under Order XVII, Rule 3, C.P.C. or under Order XVII, Rule 2, C.P.C.?
The learned trial Court did not refer to any provision of Order XVII under which plaintiff's evidence was closed and suit was dismissed in default. However , we have over viewed all such circumstances under influence of which the learned trial Court had to pass the impugned order . This matter is pertaining to the year, 1983 and before the learned trial Court it was fourth round of litigation, therefore, the learned trial Court in order to decide the matter without further delay was adjourning the case with short gape of 4-5 days as mentioned in para-5 of the petition.
Record shows that issues were settled by the learned trial Court on 13.08.2018 and then fixed the matter for evidence of the respondent No.1 / plaintif f on 25.8.2018 and after that matter was being adjourned for same purpose repeatedly for about nine (09) times. On 13.10.2018 the respondent/plain tiff had submitted his affidavit in evidence before the learned trial Court as such the petitioner had, brought his evidence on record but thereafter matter was again adjourned for 10 time and ultimately on 16.12.2018. the learned trial Court had dismissed the respondent's/ plaintif f's suit for default.
9. Keeping in view the circumstances mentioned above, we have considered the legal aspect of the impugned order in order to ascertain that whether the learned trial Court should have to proceed under Order XVII, Rule 2 or Rule 3, C.P.C. against the plaintif f as at previous date of hearing either the matter was adjourned at the instance of the Court or the adjournment for the date was sought at the behest of-the plaintif f.
10. Before discussing on these points, we would like to reproduce here the relevant provisions of Order XVII, Rule 2 and 3, C.P .C:- ORDER XVII: "ADJOURNMENTS Rule 1. Court may. grant time and adjourn hearing.---
(1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit. Costs of adjournment.---(2) In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment. Provided that, when the hearing of evidence has once begun, the hearing of the suit shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing beyond the following day to be necessary for reasons to be recorded.
Rule 2. Procedure if parties fail to appear on day fixed. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear , the Court may proceed to dispose of the suit in one of the modes directed in that behalf of Order IX or make such other order as it thinks fit.
Rule 3. Court may proceed notwithstanding either party fails to produce evidence, etc. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witness, 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.
Rule 4. Appearance of parties on the day next after holiday .
Rule 5. Appearance of parties on the day when the presiding of fice is absent.
11. It is settled law that evidence of a party cannot be closed under Order XVII, Rule 3, C.P.C for non-production of evidence where the case on the previous date was not adjourned at the request of such party . For the application of Rule 3 the following conditions must co-exist:- i. Adjournment must have been granted to the party at his request; ii. It must have been granted to it for the purposes mentioned in the rule 3 iii. The party who has taken the time defaulted in doing the act - for which he took the time from the court; iv. The party must be present or deemed to be present before the court; v. That there must be some material on record for decision of the case on merits and; vi. That the court must decide the suit forthwith that is within a reasonable time.
12. In instant matter , we did not find indication in the impugned order of the learned trial Court that the matter was adjourned on previous date of hearing on the request of the respondent/plaintiff.
13. The adjournment on last date of heari ng appeared to have been made in routin e, even otherwise if the learned trial Court has made an observation that it would be the last chance for recording evidence of the plaintif f, the Rule 3 of Order XVII, C.P.C., was inapplicable as the adjournment could not be held to have been given to the party at his instance. .
14. Moreover , while carrying on the mandate of Order IX in terms of Order XVII, Rule 2, C.P.C., it was the discretion and domain of learned Judge to have passed order in terms of requirement of Order IX, C.P.C. Very specifically learned Judge while considering the mandate of Order XVII, Rule 2 and Order XVII, Rule 3, C.P.C. dismissed the suit in default. The significant part of it is that had it been considered by the petitioner to have been passed under Order XVII, Rule 3, C.P.C., it was, never challenged by him. Meaning thereby , he conceded with the observations and frame of order in terms of Order XVII, Rule 2, i.e. Petition is dism issed in default. It is only when an application for restoration was filed that he (petitioner) took a defence that it should have been passed or deemed to have been passed under Order XVII, Rule 3, C.P .C.
15. In our view, as long as there is no material to look into, the Court has no jurisdiction to decide the suit under Order XVII, Rule 3, C.P.C. The Court should have proceeded with the suit forthwith under Rule 1(3) and not "proceeded to decide the suit forthwith under Rule 3. A slipshod order bereft of just and legal reasoning passed under Rule 3, dismissing suit without considering material on record, would be beyond the scope of powers specified under Rule 3. Consequently , when the suit is at a preliminary stage and there is not enough material on the record for a decision forthwith, the Court cannot dismiss the suit under such Rule 3. It is also pertinent that valuable right of the plaintif f is involved in the suit which cannot be allowed to be defeated in law on mere technical point as Courts are. to avoid technicalities in deciding disputes between the parties and adhere to the merits of the case. We therefore, find no material irregularity or illegality in consonance orders of appellate Court dated 25.05.2019 as well as trial Court dated 28.03.2019 respectively , hence require no interference by this Court, eventually the instant petition is dismissed having no merits along with all pending applications, if any, with no order as to cost.