MUHAMMAD NAEEM ANWAR, J.-This as well as the connected Civil Revision No. 489-P/2022 titled Abid Ullah vs Peshawar Development Authority etc. are disposed of through this single judgment as both the petitions have been filed against the orders of learned Additional District Judge-VII, Peshawar, dated 19.04.2022, whereby review applications of the petitioners against the orders of dismissal of appeal, dated 22.02.2022, were dismissed.
2. Learned counsel for the petitioners contented that suits for declaration, perpetual and mandatory injunctions filed by the petitioners/plaintiffs were pending adjudication before the learned trial court, in the meantime, the respondents/defendants moved applications with the request that the suits may be adjourned sine die till the decision of writ petitions No. 1546-P/2018, 9296-P/2017, 1551/2018 and 1552/2018 etc, which applications were replied by the plaintiffs/petitioners and, the cases were posted for arguments on the applications but, on 10.07.2021, the learned trial court by invoking the provisions of Order XVII rule 3 of the Code of Civil Procedure "C.P.C", dismissed both the suit for non-compliance of the order of the court against which appeals were filed by the petitioners which too were dismissed being time barred. According to him, review competent against the orders of the learned trial court; rather the orders were revisable, but the review applications were also dismissed. He next submitted that the learned trial court could allow the applications submitted by the respondents and issue direction that the suits shall remain adjourned till the decision of the writ petitions mentioned in the applications, as reflected from the order sheet No.12 dated 26.11.2019. Lastly, he submitted that the orders of learned trail court and that of the learned appellate court and, thereafter, the dismissal of the review application are illegal which resulted in grave miscarriage of justice.
3. Contrarily, learned counsel for the respondents contended that the learned trail court has dismissed the suits for non-compliance of the order whereby the petitioners were directed to argue the case, but they failed which resulted into the orders of dismissal, dated 10.07.2021. He added that it was an appealable order, however, the appeals of the petitioners were badly time barred and, as such, the same were dismissed. According to him, review of the order could only be entertained in exceptional circumstances as the scope of review is extremely limited and narrow, thus, the applications submitted by the petitioners to review the orders of dismissal of their appeals was passed in accordance with law. He lastly contended that the dismissal of the suits for non- compliance of the orders was appealable in view of the judgment of this court.
4. Arguments of learned counsel for the parties heard and record of the case gone through.
5. Undeniably, the petitioners filed suits for declarations for extension of lease from 3 years to 33 years based on a Notification and that notice dated 13.03.2018 is illegal, against the facts and law and is of no legal effect. Mandatory &perpetual injunctions were also prayed for. Admittedly, the suits have not been decided on merit. It is apparent from record that even the respondents/defendants have not submitted their written statement before the learned trial court.
There is a reference in order sheet, dated 26.11.2019, that the applications were moved by the defendants No. 1 to 3 for adjournment of the suits sine die, as certain writ petitions were pending adjudication before this court, the particulars of which are mentioned in the order sheet, which order sheet, for reference, is reproduced herein below:- "Counsel for the parties present. Counsel for defendants No. 1 to 3 moved an application and stated that the above titled suit being lis pendens in august Peshawar High court, Peshawar, therefore, the proceedings here in this court may be adjourned sine die till the final outcome of the writ petition No. 1546-P/ 2018,5296P/2017, 1551/2018, 1552/2018, 1599/ 2018, 1733/2018, 1736/18, 1780/ 18,1819/18, 1843/18, 2060/ 18, 3483/18,3484/18. File to come up for reply to the said application on 17.12.2019."
The cases were, thereafter, posted for written reply and it is evident from the orders sheet No. 16, dated 07.03.2020, the written replies were placed on record. After receipt of the reply in both the suits,on four consecutive dates of hearing i.e., 28.03.2020, 25.04.20., 16.05.2020 and 13.06.2020, proceedings on the cases could not be carried out as on 28.03.2020, 25.04.20 and 16.05.2020 were declared as public holidays, while on 13.06.2020, the Presiding Officer of the court was on leave.
Subsequently, the case was posted for arguments on application to 27.02.2021 and, thereafter, to 27.03.2021 and, finally, it was on 24.04.2021, when the case was adjourned by the learned trial court for 05.06.2021, but, on that date, none of the party was in attendance before the learned trial court and, therefore, the case was adjourned for 10.07.2021, however, in absence of the parties, notice under the provisions of Order XVII Rule 3 C.P.C was issued to them. On 10.07.2021 too, none of the party was in attendance, but the learned trial court dismissed the suits for non compliance of the direction of the court by invoking the provisions of Order XVII Rule 3 C.P.C, despite the fact that the directions of the court were to argue the application, which was submitted by the respondents/ defendants but even they themselves were not in attendance and, at this juncture, at the most, the learned trial court could either allow the applicationsby adjourning the suits sine die or to dismiss the applications but, in no way, could dismiss the suits for non- compliance of directions of the court by invoking the provisions of Order XVII Rule 3 C.P.C.
6. Moreover, Order XVII rule 2 deals with,the circumstances when the parties are not in attendance when the case is fixed for hearing. For ready reference, Order XVII Rule 2 is reproduced as under:- "2. 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 by Order IX or make such other order as it thinks fit."
Similarly, Order IX rule 3 is in respect of absence of the parties, which reads as under:- "3. Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed."
Dismissal of suit under rules 2 and 3 provides the remedy under rule 4 of order IX C.P.C, where the plaintiff may bring a fresh suit, or the court may restore the suit to file on the application filed by the plaintiff. The very order of the learned trial court dismissing the suits for non- compliance of order by invoking the provisions of Order XVII rule 3 C.P.C was not in consonance with law. Order XLIII rule 1 C.P.C is in respect of the appeal against the order, however, there is no reflection of the appeal under Order XLIII rule 1 C.P.C (appeal from the order).
7. Be that as it may, it was the duty of the court to be aware of the fact and proper application of law, however, the appeals filed by the petitioners were dismissed being time barred against which review applications were filed which too were dismissed. The very initial order of the learned trial court was not in consonance with law as the main suits before the learned trial court were not fixed for hearing rather the suits were fixed for hearing of the applications which were submitted by the respondents to adjourn the cases sine die before the learned trial court. The applications were required to be decided after hearing the parties either in acceptance thereof or to dismissal but in the absence of both the parties, the suits were dismissed which were not fixed before the Court for hearing.
8. It is the cardinal principle of the administration of justice that lis before the court must be decided on merit and not on technical ground, but here, in the instant case, the suits of the petitioners were dismissed against the norms of law and the procedure provided under the Code of Civil Procedure.
9. No doubt, the scope of application of section 114 read with Order XLVII rule 1 C.P.C is limited and review is possible only when there is an error flouting on the surface of the record which it appears in the instant matter and in the connected Civil Revision and, thus, the learned trial court as well as the learned appellate court has committed an illegality while passing the impugned orders as suit could not be dismissed for non-compliance of direction of the court when no one was before the court.
10. It is worth mentioning that even on 05.06.2021, no one was present before the court when notice was issued under Order XVII rule 3 C.P.C. Moreover, the Court could have proceeded in terms of Order XVII Rule 2, C.P.C. All this has not been done in this matter and the Court has gone to the extent of dismissing the suit under Order XVII Rule 3, C.P.C. It is settled proposition that the matters are to be decided on merits instead of technicalities and parties are to be allowed to lead evidence in support of their cases. The Hon'ble Supreme Court in the case of Muhammad Aslam vs. Nazeer, Ahmed (2008 SCMR 942) has dealt with an identical situation and has been pleased to hold that "since in the instant case it appears from record that on 7-9-2006 the plaintiff himself was in attendance when the case was adjourned for the next day i.e. to 28-9-2006 for orders, otherwise recourse to Order XVII, rule 2 could have been made, therefore, the trial Court, despite non-production of witnesses by the plaintiff, ought to have asked the plaintiff to come in the witness-box instead of dismissing the suit forthwith."
11 Similarly, notice to take a further step toward the logical end of the conclusion of the lis pending adjudication before the court could only be issued in the presence of the party and not in their absence. In the case of Lahore Municipal Corporation Vs. S. Abdul Rahim and 3 Others (PLD 1973 Lahore 391) Rule 3 & 2 were interpreted by holding that "Rule 2 of Order XVII deals with procedure if parties fail to appear on any day to which the hearing of the suit is adjourned, while the opening words of rule 3 show that it covers cases where any party to a suit to whom time has been granted fails to produce its evidence or to cause the attendance of its witnesses or to perform any other act necessary to the further progress of the suit for which time has been allowed. The distinction between the two rules has been considered in various judgments of the superior Courts and the consensus of opinion has been that rule 3 comes into play when a party that has obtained an adjournment defaults in producing evidence or causing attendance of its witnesses or performing any other act necessary for further progress of the suit, while rule 2 pertains to cases of adjournment granted by the Court." Reliance may also be placed on Amanullah Khan and 5 others Versus Mst. Havat Bibi and 4 others(2006 CLC 1546), Abdul Aziz vs. Abdul Hameed(2007 YLR 3159) wherein it was observed that "I have gone through the copies of record. I find that on 20- 9-201 none of the parties were present. This being so the suit could have been proceeded only under Order XVII, Rule 2, C.P.C. and at the most it could have been dismissed for non-prosecution as none was present."
12. Viewing the submissions of the learned counsel for the parties and going through relevant provisions of the Code of Civil Procedure, I am of the considered view that the orders passed by the learned trial court and that of the learned appellate court for dismissing the suits of the petitioners for non- compliance of the direction of the court by invoking the provisions of Order XVII rule 3 C.P.C were illegal, against the law and the same could not be sustained, therefore, on acceptance of the instant civil revision as well as the connected civil revision No. 489-P/ 2022, the orders of both the courts below, i.e., the learned trial court and appellate court, dated 10.07.2021, 22.02.2022, and 19.04.2022 respectively, are set aside and, accordingly, the suits of the plaintiff/petitioners are restored and shall be deemed pending before the learned trial court. The parties shall appear before Civil Judge VI, Peshawaron 10.09.2024. No order as to cost.