Brief facts of the instant Civil Revision are that the respondent/plaintiff filed a suit for possession regarding 6 Marlas situated in Mauza Bhoana Tehsil Chiniot. District Jhang. Suit was contested by the defendants Nos. l to 3 and the following issues were formulated:-- (i)Whether the plaintiff has got no cause of action? O.P.D.
(ii)Whether the suit is based on mala fide intention? O.P.D.
(i.e)Whether the plaintiff is estopped by his words and conduct to file the present suit? O.P.D.
(iv)Whether the description of the suit property has been wrongly mentioned in the plaint, if so its effect? O.P.D.
(v)Whether the valuation of the suit property for the purposes of court-fee and jurisdiction has not been correctly fixed, if so its effect? O.P.D.
(vi)Whether the suit is not maintainable in its present form? O.P.D.
(vii) Whether the plaintiff is entitled to a decree for possession, as claimed in the plaint? O. P. P.
(viii) Relief.
2.The plaintiff and defendant No.3 led evidence in support of their respective claims, Evidence of the petitioner/ defendant No.1 was closed under Order 17, Rule 3, C,P.C. And the case was decreed vide judgment and decree, dated 16-9-1992. An appeal against the same was filed which was dismissed vide judgment and decree, dated 1-8-1993. Both these judgments are under challenge in the instant civil revision.
3. Contentions of the learned counsel for the petitioner are that the material on record was misread and misinterpreted and in an arbitrary manner the impugned judgments and decrees were passed; that the finding of the learned Civil Judge on issues Nos. l and 7 was quite erroneous and the finding of learned Civil Judge on Issues Nos.2, 4 and 5 was also erroneous as the petitioner was not given any chance to produce evidence. So, the findings on these issues was based on no evidence. A number of opportunities were given to the plaintiff to adduce evidence and the last date of evidence was written by the Reader and on the second date the learned Court violated the pre-emptory provisions of law and failed to appreciate the law laid down by the superior Courts and misinterpreted the provisions of Order 17, Rule 3, C.P.C. And closed the evidence of the petitioner and passed the impugned judgment and decree.
4. He has relied on Muhammad Hussain and 5 others v. Akram Baig and 3 others PLD 1988 Lah. 183, Muhammad Nazeer etc. v. Mst. Fatima Bibi 1993 MLD 329, Mst. Kaniz Fatima v. Ghulam Mustafa 1994 MLD 174, Malik Nayyar Hussian v. Muhammad Saeed and others 1993 MLD 1788, Muhammad Haleem and others v. H.H. Muhammad Naim and others PLD 1969 SC 270 and Sultan v. Yara etc. NLR 1994 Civil 23. His submissions are that the case was adjourned by the Reader of the Court and this is no order under Order XVII, Rule 3, C.P.C. Counsel for respondent further submitted that in fact the suit was filed against Falak Sher and Malik Sher, the instant civil revision is only filed by Falak Sher and Malik Sher is not arrayed as party, therefore, the instant Civil Revision is incompetent. Learned counsel for the petitioner submits that the contestant was the present petition and the defendant No. l Malik Sher was pro forma defendant who is averred is selling the disputed property to the plaintiff vide a fictitious registered deed. Second objection of the learned counsel for the respondent is that the defence of the petitioner was struck of under Order XVII, Rule 3, C.P.C. On 21- 1-1992 and he did not file revision against that order rather filed an appeal against the final judgment and decree, dated 16-9-1992 and on this score the instant Civil Revision is also not maintainable.
5. 1 have heard the learned counsel for the parties and carefully perused the record. The issues were formulated on 4-12-1990 and afterwards the case wits adjourned for evidence of the plaintiff on 16-1-1991. On that date evidence of the plaintiff was not available and the case was adjourned to 13-2-1991 and was further fixed for 18-3-1991 and then onward fixed for evidence of the plaintiff on 27-4-1991, 4-5-1991, 25-6-1991 and 14-9-1991 subject to cost and then it was fixed for evidence of the defendants for 29-10-1991. On 29-10-1991 as the transport was not available for the reason of arrival of the Prime Minister and the case was adjourned for evidence of the defendant for 8-12- 1991, on that date the learned Civil Judge was on leave and the Reader wrote that evidence of the defendant is not available, last opportunity is given for 21-1-1992. On 21-1-1992 the learned trial Court struck of the evidence of the petitioner/defendant under Order XVII, Rule 3, C.P.C. And the case was adjourned for 2-2-1992, 28-4-1992, 18-5-1992, 1-6-1992, 20-6-1992" 4-7-1992, 18-7-1992, 2- 9-1992, 8-9-1992 and it was on 16-9-1992 vide the impugned judgment and decree the suit was decreed. It is a settled proposition of law that A the ministerial staff of the Court has no authority to direct the parties to do or not to do certain act. A number of opportunities were given to the plaintiff to produce the evidence while the defendant was given only two opportunities i.e. 14-9-1991 and 29-10-1991, the transport was not available due to the arrival of the Prime Minister and on 8-12-1991 the Court was on leave and it was only 21-1-1992 the defence of petitioner was struck of. These are not the requirements of Order XVII, Rule 3, C.P.C. The settled law on this score is that the parties should be given proper opportunities to prove their respective claim and cases be decided on merits, Sultan v. Yara etc. NLR 1994 Civil 23 and Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PLD 1971 SC 434 where it is held that unless default committed by a party in doing act for which time was granted provisions of Order XVII,Rule 3, C.P.C are not attracted. As the perusal of interim orders show that the defence was struck of on 21-1-1992 while the provision of Order XVII, Rule 3, C.P.C. Are that the Court while striking of the defence shall decide the case forthwith and according to the aforesaid judgments of the Supreme Court within a reasonable time. The petitioner did not bring the evidence on 14-9-1991 which was first day fixed for evidence of the defendant. On 2-10-1991 due to lack of transport the evidence, could not be brought and the case was adjourned to 8-12-1991 and on that date, the Court was on leave and last opportunity was given by the Reader to produce evidence and the case was fixed for 21-1-1992 and the learned Court struck of the defence of the petitioner/plaintiff. The record shows that afterwards this case was adjourned on many dates till 16-9-1992 the final judgment and decree was passed. This is also a violation of the provision of Order XVII, Rule 3, C.P.C. Whenever the Court strikes of the defence of the parties it always on the basis of the material available on record pass a judgment and decree forthwith and according to the Honourable Supreme Court means a reasonable time as is held in Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 that mere technicalities cannot be allowed to defeat ends of justice and it is always good that the case should be decided on merits.
6. Contention of the learned counsel for the petitioner that one of the parties has not filed appeal cannot make the instant revision incompetent as the record shows that he was the pro forma defendant and has allegedly entered into transaction with the plaintiff and if he fails to appeal against the impugned judgments and decrees it will be future bar against him and not against the party who is challenging the same. The next contention of the learned counsel that the order, dated 21-1-1992 was not assailed in a revision is not at all convincing because the provision of Order XVII, Rule 3, C.P.C. Are appealable and it provide that the "Court may notwithstanding such default proceed to decide the suit forthwith". The nature of this rule are permissive and discretionary and are appealable as is envisaged in Rule 2. Which is reproduced below: "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 direct in that behalf by Order IX or make such order as it thinks fit."
The word is "dispose of" and decide the suit forthwith, therefore, the petitioner has rightly appealed before the appellate forum. The judgment of the learned F Courts below suffer from legal infirmity and are not passed in terms of provisions of Order XVII, Rule, 3, C.P.C., therefore, the revision petition is accepted, the impugned judgments are set aside and the patties are directed to appear before the learned District Judge, Jhang on 11-3-1999 for further entrustment of this case to Court of competent jurisdiction for decision afresh on merits.