JUDGMENT MIAN NAZIR AKHTAR, J. - This Constitutional petition has been filed to assail the order dated 1.7J991 whereby the evidence was closed under Order 17 Rule 3 of the C.P.C, and the suit of the petitioner was dismissed and the suit of the petitioner was dismissed and the subsequent order dated 8.3.1992 whereby his application for recalling the earlier order was dismissed.
2. Briefly stated the facts of the case are that the petitioner filed a suit for declaration and specific performance of the agreement dated 22.8.1985 in the Court of the Civil Judge, Shorkot against respondents 1 to 10. The respondents entered appearance and filed their written statement to contest the suit. The trial Court framed necessary issues and fixed the case for recording the evidence on 28.5.1991. Thereafter it was adjourned three t mes because the petitioner's evidence was not present. On 1.7.1991, the petitioner was not present in the Court when the case was called out for hearing and thus the Court closed the petitioner's evidence and dismissed the suit under Order 17 Rule 3 of the CPC. The petitioner filed an inapplication for recalling the said order on the same dale which was dismissed by the Court vide order dated 8.3.1992. The petitioner's revision petition was dismissed by the learned District Judge vide his order dated 11.5.1992.
3. Notice of this petition was duly issued to respondents 1 to 10 for (i.5.1993 but they did not appear in the Court despite service and were ordered to be proceeded against ex parte,. Even today, no one is present on behalf of the respondents f to 10.
4. There is considerable force in the arguments of the petitioner's learned counsel that in the event of plaintiff's absence, the only course open to the trial Court was to dismiss the suit under the provisions of Order 17 Rule 2 of-the CPC and that the Court acted without lawful authority applying the provisions of Older 17 rule 3 of the CPC. Closing the evidence and dismissing the suit forthwith.
In case of non-appearance of the Petitioner/plaintiff, it was open to the Court to dismiss the suit under the provision of Order 9 Rule 9 of the C.P.C, or to make such other order as it thought fit in the circumstances of the case. However, it could not pass an order under the provisions of Order 17 Rule 3 of the CPC closing the petitioner's evidence and dismissing the suit. This view finds support from the judgments in the cases-of:- Muhammad Naeem others HH Muhammad Najm & others (P.L.D. 1969 S.C. 270) and Abdul Shakoor v. Alahi Ra. Sool (P.L.D. 1963 (WP) Kar. 356). In the case of Basalitutppa Kushappa Kitmhhar and others v. Shidramappa Irappa Shivana and another (A.I.R. 1943 Bombay 321) the Full Bench was pleased to hold that if a party fails to appear in the Court, there is no reason that the Court should assume that he is guilty of default and apply the stringent provisions of Order 17 Rule 3. The Court should apply the provisions of Order 17 Rule 2 of the LPC: It was further held that the correct rule was to treat Rule 3 as applying only to cases where the parties are present and have not satisfied the court as to the existence of any adequate reason for their not. Having done what they were directed to do. If there is material available on the record for deciding the suit on merits, inch the Court may proceed for further progress of the suit under the provisions of Order 17 Rule 3 of the CPC.
5. Admittedly, in the present case, there was no evidence on the record for deciding the suit forthwith under Order 17 Rule 3 of the CPC. Therefore, the only legal course open to the trial Court was to dismiss the suit for non-prosecution under Order 17 Rule 2 of the CPC. The petitioner had filed an application for reviewing/recalling the order dated 1.7.1991 on the same date. It was stated in the application that the petitioner and his witnesses were present outside the Court room and that when the case was called out, the petitioner had gone to bring his learned counsel from the court of another learned Civil Judge. The application was wrongly dismissed on hypertechnical view that it watt, filed under section 114 and Order 47 of the CPC. The Court ought to have treated it as an application under Order l) Rule 9 of the CPC and allowed it as the basic order dated 1.7.1991 w as clearly illegal.
6. For the foregoing discussion, this petition is allowed and the impugned orders are set aside. The petitioner's application filed under section 114 read with Order 47 Rule I of the CPC is treated as one under Order 9 Rule 9 of the CPC and allowed; Resultantly, the petitioner's suit is restored to its original number which shall be decided by the trial court in accordance with the law after allowing .In opportunity to the petitioner to produce his evidence.