IjAZ AHMAD, J.- The present revision petition arises out of the following facts:- That the present Petitioner/plaintiff filed a suit against the respondents for declaration and permanent injunction to the effect that the Petitioner/plaintiff was the owner in possession of the property 'land mentioned in para 3 of the plaint and the respondent/defendant No. 1 was only a benami purchaser and that the registered gift dated 19.9.1972 allegedly executed by the respondent/defendant No. 1 in favour of respondent/defendant No. 2 was collusive, forged and void and, therefore, in-effective against the interest of the Petitioner/plaintiff on 15.8.1997. After completing the legal formalities the trial Court framed the issues on 5.3.1981 and adjourned the case for 5.5.1981 for the evidence of the Petitioner/plaintiff. On 5.5.1981 Presiding Officer was on leave, therefore, the case was adjourned for 8.6.1981. On 8.6.1981 only one witness of the plaintiff was present and the leamed trial Court did not record the evidence as the counsel of the respondent/defendant requested for adjournment therefore, the case was adjourned for 9.9.1981.
On 9.9.1981 the Petitioner/plaintiff submitted application with the prayer that time may be allowed to bring the witnesses. Request was accepted and the case was adjourned for 31.10.1981. On 31.10.1981 Presiding Officer was on leave and the case was adjourned for 6.12.1981. On 6.12.1981 summoned witnesses were not present. Request for time was granted and the case was adjourned for 18.2.1982. On 18.2.1982 after granting the last opportunity to the Petitioner/plaintiff with the for 25.5.1982. On 25th of May, 1982 the leamed trial Court did not accept the request for adjournment on behalf of the Petitioner/plaintiff and closed the evidence of the Petitioner/plaintiff and the suit was dismissed. The Petitioner/plaintiff filed an appeal before the District Judge which was entrusted to Addl. District Judge. Gujranwala and the appeal was dismissed on 2.10.1982, hence the present revision petition.
2. The leamed counsel for the petitioner contended that the evidence of the Petitioner/plaintiff was closed under the Order XXXVII rule 3 C.P.C, on the basis that he had failed to deposit process fee for summoning the witnesses despite grant of eight opportunities. He had failed to explain the cause for not bringing evidence. Leamed counsel further submitted that the position obtained in the order was contrary to what has been mentioned in the order as in fact the process fee was deposited and the summons issued remained un-served. These documents could not be noticed as the same were attached by the Ahmad of the Court with regard to another suit No. 208 between the same party in the same Court.
3. Vide order dated 19th March, 1983 the petitioner was allowed to file certified copies of the order sheet, of suit No. 208, list of witnesses and 'Fard Talbana' for summoning the witnesses filed in the said suit. The leamed counsel further contended on the basis of above mentioned documents available on the file at pages 22, to 34, that the Petitioner/plaintiff complied with the order of the leamed trial Court dated 18.2.1982 in letter and spirit. These documents clearly establish that the Petitioner/plaintiff deposited process fee for summoning the' witnesses and the report of the process server clearly mentioned that the order dated 18.2.1982 was complied with and on the basis of these reports it is the duty and obligation of the trial Court to issue notice but the leamed trial Court failed to do so. The leamed counsel relied on the following cases:-
1. Mst. Atfa Amjad etc. v. Abbas Tayyab Dar etc. (1990 Law Notes 890)
2. Lai v. Ghulam Muhammad and another (1995 Lahore 385)
3. Waheed Bakhsh v. Judge Family Court (1992 C.L.C. 1241>
4. Ghulam Rasool v. Mehboob All (1991 C.L.C. 1164)
5i Wadera DU Khan v. Province of West Pakistan (P.L.D. 1970 Quetta 79)
4. Leamed counsel for the respondent supported the order dated 25.5.1982 that the Petitioner/plaintiff failed to bring evidence within one year and two months after framing issues by the trial Court and even one adjournment, on 9.12.1981 was granted at the cost of Rs. 15/-. The leamed counsel further contended that the orders of both the Comrs below are strictly in accordance with Order 16 rule 1 read with Order 17 rule 3 C.P.C. The conduct of the Petitioner/plaintiff is such that the discretion exercised by both the Courts below against him should not be disturbed specially concurrent findings of fact are also against the Petitioner/plaintiff. The leamed counsel further contended that the documents placed on record by the Petitioner/plaintiff regarding suit No. 208 are not correct only mentioned expenses deposited. The dispute is between the mother and son and the son is not entitled to any relief by virtue of his conduct.
5. I have given my anxious consideration, contentions of both the leamed counsel and perused the record myself. The trial Court passed an order under Order 17 rule 3 C.P.C, in haste and did not provide proper opportunity to the Petitioner/plaintiff to establish before passing the order that the order dated 18.2.1982 was complied with in letter and spirit. In fact two suits of both the parties of the same title pending before the same Court. Oh account of this confusion the Ahmad of the Court attached all these papers mentioned above in the file of suit No. 208. In such situation the Petitioner/plaintiff could not be penalised by the act of the official of the Court as is held by this Court in Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education Lahore and another (P.L.D. 1994 Lahore 3), Both the Courts below failed to exercise lawful jurisdiction vested in them and both the Courts below passed the judgments and decrees without applying their mind. The action under Order 17 rule 3 C.P.C, is Exception. The Supreme Court laid down the principle that the cases must be decided on merits instead of technicalities. Reported as Muhammad Haleem and others v. H.H. Muhammad Naim and others (P.L.D. 1969 S.C. 270). It is pertinent to mention here that Order 17 rule 3 C.P.C, is permissive and not mandatory being penal in nature should be strictly construed. Failure of party to produce evidence on such date does not justify decision of suit forthwith unless the party fails to take step necessary for the progress of the suit. In such situation the decision of dispute has to be on merits rather than readily applying the penal provision of law. It is basic arid fundamental principle of law that stringent and extreme measure should only be taken if Court comes to the conclusion that the Petitioner/plaintiff by his conduct made it against for Court to proceed with the trial of suit. Interest of justice would have been better served if Petitioner/plaintiff was afforded another opportunity to lead evidence rather than applying provision of law. As mentioned above the Petitioner/plaintiff complied with the order in letter and spirit while depositing process fee etc. But on account of negligence of Ahmad to place the documents of the present case in suit No. 208 the Petitioner/plaintiff should not be penalised by the omission/negligence of the staff of the Court. In such situation Order XVII rule 3 is not attracted as is held by the Supreme Court of Pakistan in case reported as Moulvi Abdul Aziz Khan v. Mst. Shah Johan Begum and 2 others (PLD 1971 Supreme Court 434).
4. In view of what has been stated above the revision petition is accepted, order of the leamed District Judge dated 2.10.1982 is set aside and the appeal filed by the petitioner is remanded to the trial Court. The trial Court is directed to decide the case afresh in accordance with law after completing all the formalities and providing proper opportunities to both the parties. As the matter is very old the trial Court is directed to decide the case till 30.4.1998.