' A suit for permanent injunction restraining the respondent from making encroachment on the land bearing Khasra Nos. 290 and 297/1 situated in Mauza Bhatta Kohar, Tehsil and District Lahore, was instituted by the petitioner. The petitioner's contention was that the aforementioned land was owned by it and that the possession of the said land was also with it. According to the petitioner the respondent had tried to make encroachment on the aforementioned land by using it for the construction of a Katcha road for his residential colony. The respondent in his written statement stated that land measuring about one Kanal belonging to the petitioner was utilised for constructing the Katcha road which leads to the graveyard. The respondent offered to transfer an equal area to the petitioner in lieu of the aforementioned land. The learned trial Court framed the following issue for the disposal of the suit:
(1) Whether the plaintiff is entitled to the injunction as prayed for? O.P.P.
(2) Relief.
2. On 9-10-1983 when the case came up for hearing it was found that neither any representative of the petitioner nor its counsel were present in Court nor any witness had been summoned to appear on behalf of the petitioner. The learned trial Court refused to adjourn the case at the request of Mr. Muhammad Bashir Mirza, Advocate, who appeared on behalf of the petitioner's counsel, and after closing the petitioner's case under Order XVII, rule 3, C.P.C. dismissed the suit with costs. The petitioner filed an appeal against the judgment and decree of the learned trial Court but the same was dismissed by the learned Additional District Judge, Lahore, vide order, dated 12-2- 1984.
' The petitioner has filed the present revision petition challenging the judgments and decrees of the Courts below.
3. As the respondent failed to appear in Court after service of notice this revision petition has been heard in his absence.
4. Learned counsel for the petitioner has contended that the learned trial Court has failed to apply its mind to the facts of the case while deciding it under Order XVII, rule 3, C.P.C. because in its judgment, dated 9-10-1983 no reference has been made to the material on record. The petitioner's suit has been dismissed simply because no evidence was produced on its behalf on the date of hearing. According to the learned counsel the trial Court had not only ignored the respondent's averments in para. 5 of his written statement at the time of framing of issues but had also failed to consider it while finally deciding the suit. In para. 5 of the written statement the respondent had clearly admitted that land measuring about one Kenal belonging to the petitioner was to be used for the construction of the road and that the respondent was ready to transfer an equal area of land belonging to him in favour of the petitioner. The learned counsel for the petitioner has taken exception to the observation made by the learned Additional District Judge that even in view of the admission made by the respondent the trial Court was not bound to decree the petitioner's suit because the petitioner's suit was not for possession of land allegedly encroached upon by the respondent. According to the learned counsel for the petitioner no objection had been raised by the respondent in his written statement about the form of the suit and that after admitting the contents of paragraph 6 of the plaint, wherein it was stated "as a result of demarcation it was verified beyond any doubt that the land through which the defendant (respondent) attempted to build the road forms the part of the land bearing aforesaid Khasra Nos. 290, 297/1 owned and possessed by the plaintiff", it was not necessary for the petitioner to institute a suit for possession as the respondent had only made an attempt to use the disputed land belonging to the petitioner for the construction of the road.
5. It is a well-settled proposition of law that when a Court proceeds to decide a suit in exercise of the powers conferred on it under Order XVII, rule 3, C.P.C. the case must be decided on merits. A decision on merits is possible only when there is sufficient material available on the record and it is for that reason that the application of the provisions of Order XVII, rule 3, C.P.C. is not approved where the case is at the preliminary stage and no sufficient material has been brought on the record by the parties to enable the Court to give its decision. In the instant case the plaintiff had failed to produce evidence on the date fixed for the hearing of the case but there is nothing to indicate whether there was sufficient material on the file on the basis of which the case could be decided by the Court. Even in the absence of such material the learned trial Court should have referred to the pleadings of the parties while deciding the case. It has been rightly pointed out by the learned counsel for the petitioner that it would not have been possible for the trial Court to dismiss the petitioner's suit if it had cared to keep in view the admission made by the respondent in paragraph 5 of his written statement. The view taken by the learned Additional District Judge that the admission made by the respondent was of no avail as the petitioner had not instituted the suit for possession of the disputed land is not based on proper appreciation of the pleadings of the parties. The petitioner's contention that the disputed land was in its possession was not controverted by the respondent. Similarly the allegation made in the plaint that the respondent attempted to use the disputed land for the construction of the road was not denied by the respondent. In view of the respondent's averments in the written statement it was not necessary for the petitioner to have instituted a suit for possession of the disputed land. There is no doubt that the learned trial Court while exercising jurisdiction under Order XVII rule 3, C.P.C. has acted with material irregularity. In view of the circumstances of the case as noticed above the impugned judgments and decrees passed by the learned trial Court and the learned appellate Court are not legally sustainable. This revision petition is accordingly accepted with costs and the decrees and judgments of the Courts below are set aside. The case is remanded to the learned trial Court for disposal according to law.