' This revision petition arises out of a suit for permanent injunction filed by the petitioners on 31-7- 1995 in the Court of learned Civil Judge, Lahore. The respondents resisted the suit and filed their written statements in the Court which gave rise to the following issues:- ISSUES:
(1) Whether the plaintiffs are entitled to claim the enjoyment of roofs as easement of Shops Nos.47/7, 47/9, and 47/10 and as such they are entitled to the decree of permanent injunction against the defendants? OPP
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the plaintiffs have no cause of action and locus standi to file the suit? OPD
(4) Whether the claim of plaintiffs is hit by clause? Of section 17 of the Easements Act? OPD
(5) Whether the plaintiffs have not come to the Court with clean hands and as such they are not entitled to claim discretionary relief? OPD
(6) Whether the suit is hit by the principles of res judicata and Order 22, C.P.C.? OPD
(7) Whether the suit is vexatious and plaintiffs are liable to special costs? OPD
(8) Relief.
2. The trial Court fixed the case for recording plaintiffs' evidence on 10-9-1996, 4-11-1996, 14-1-1997, 26-3-1997 and 14-5-1997 but they failed to produce their evidence. On 14-5-1997 the petitioners/plaintiffs sought an adjournment on the ground that they had filed an application for transfer of the suit. The case was adjourned for 5-6-1997. On the said date, the learned counsel for the parties jointly prayed that the case be adjourned for Saturday, 7th of June, 1997, 12-30 p.m. For recording evidence. On the adjourned date, i.e, 7-6-1997, the petitioners were present alongwith their two witnesses but their evidence could not be recorded due to the Lawyers' strike. Accordingly, the case was adjourned for 22-6-1997 when the petitioners failed to appear and their evidence was closed under the provisions of Order XVII, rule 3 of the C.P.C.
3. The petitioners' learned counsel submits that on 7-6-1997 the petitioners evidence was available but it could not be recorded due to a circumstances beyond their control; that on 7-6-1997 the case was not adjourned on the petitioners' request, therefore the penal provisions of Orders XVII ,rule 3 of the C.P.C were not attracted.
4. On the other hand, the respondents' learned counsel strenuously urged that the past conduct of the plaintiffs vividly showed that they were grossly negligent and had obtained a number of adjournments but did not produce their evidence; that even if adjournment was not sought by the petitioners on 7-6-1997 the trial Court was justified to close their evidence on 12-6-1997 by applying the provisions of Order XVII, rule 3 of the C.P.C. In support of his contentions, he relied on the judgment in the case of "Executive Engineer, Peshawar v. Messrs Tour Muhammad & Sons and 4 others" (1983 SCMR 619).
5. It is true that the petitioners/plaintiffs had obtained a number of adjournments for producing their evidence and the Court could have closed their evidence under Order XVII, rule 3 of the C.P.C.
On or before 14-5-1997. However, the Court did not choose to apply the provisions of Order XVII, rule 3 of the C.P.C. At the appropriate time. On 5-6-1997 the case was adjourned with the concurrence of learned counsel for the parties for 7-6-1997. On that date, as mentioned above, not only the petitioners were present but they had brought two witnesses. But for the Lawyers' strike, their evidence would have been recorded. On the said date, the case was not adjourned at the instance of the petitioners. The adjournment was necessitated due to a circumstance'' beyond the control of the parties. Therefore, on the adjourned date, i.e, 12-6-1997 the Court was not legally justified to invoke the provisions of Order XVII, rule 3 of the C.P.C. For closing the petitioners' evidence due to their non-appearance. The Court could have dismissed the suit for non-prosecution under the provisions of Order XVII, rule 2 read with Order IX, rule 8 of the C.P.C. Or made such other order as it thought fit. However, it appears that the learned Civil Judge was not conscious of the provisions of Order XVII, rule 2 of the C.P.C. And illegally applied the provisions of Order XVII, rule 3 of the C.P.C.
And closed the petitioners' evidence. The Judgment relied upon by the respondents' learned counsel proceed on its own distinguishable facts. In the precedent case adjournment was granted for 12-7-1981 on the specific request of learned counsel for the defendant/petitioner. On the adjourned date, again a request was made on behalf of the defendant for adjournment for filing written statement. Accordingly, the case was adjourned for 22-7-1981. On that date, the parties were present but no written statement was filed by the defendant whereupon his defence was struck off under Order XVII, rule 3 of the C.P.C. The Hon'ble Supreme Court was pleased to hold as under:- ' "This order obviously is made under Order XVII, rule 3 of the C.P.C. This Rule applies where a party who is granted time to perform some act, not only fails to do so but is also absent on the date to which the hearing is adjourned. It is immaterial whether the adjournment was granted at the instance of the party or for other reasons."
The rule laid down by the Hon'ble Supreme Court can be applicable in a case where there is material on the record to enable the Court to decide the suit forthwith. Otherwise, the Court has to apply the provisions of Order XVII, rule 2 of the C.P.C. I am fortified in my view by an earlier judgment of the Supreme Court of Pakistan reported as "Muhammad Haleem and others v. H.H. Muhammad Naim and others" (PLD 1969 SC 270). In the said case, it was held: ' "It would, therefore, appear that there is a distinction between these two Rules and it lies in this that rule 2 would be attracted to a case where the adjournment has been granted generally for one of the purposes mentioned in that Rule but where the entire evidence has been recorded and the case is posted only for the hearing of arguments, the more appropriate Rule to follow would be rule 3 and not rule 2.
' The consensus of judicial opinion appears to be in favour of the view that if it is possible for a Court to base a decision on merits upon the materials already brought on the record, it should proceed under rule 3 of Order XVII and not under rule 2. This appears to us also to be sound on principle. Every party who has instituted a cause or matter in a Court has a right to have his case decided on merits. A dismissal for non-prosecution should, therefore, be an exception and not a rule. If it at all possible for a Court to decide the matter as indicated in rule 3, then it should adopt that course and not dismiss the proceedings for non-prosecution and leave the parties to start a second round of litigation."
' The same view was expressed by a Division Bench of this Court in the case of "Mst. Arifa Amjad and 2 others v. Abbas Tayyab Dar and another"(1990 CLC 1743). The relevant part from the judgment is reproduced below:-- ' "Having reproduced, the relevant provisions of Order XVII, Civil P.C. Above, we shall advert to rules 2 and 3 to discover about their application. Distinction in the pharaseology employed in rules 2 and 3 appears to be marked. It has been subject-matter of discussion in numerous judgments of the superior Courts found in law reports. However, judicial consensus leans in favour of the view that necessary conditions for the applicability of rule 3 are: (i) the time must have been granted to the party at his instance; (ii) the time must have been granted to the party to do one or other of the three things mentioned in the rule viz. To produce evidence or to cause attendance of witnesses or to perform any other act necessary for the progress of the suit; (iii) default must have been committed by the party in doing the act for which the time and adjournment had been granted to it, and (iv) the Court must decide the suit forthwith which means a decision within a reasonable time under the circumstances. Additionally, some decisions take the view that provisions in rule 3 being stringent and penal in character should not be applied unless the facts do not admit application of any other rule of the Code and also that for its proper application, sufficient material must be available on record for giving a proper decision on merits which do not include a summary decision."
In the present case, there was no material on the record to enable the Court to decide the suit forthwith or within a reasonable time. Therefore, the Court ought to have proceeded under the provisions of Order XVII, rule 2 of the C C.P.C. And either dismissed the suit for non-prosecution or granted one more adjournment to the petitioners to produce evidence. Keeping in view the fact that they had brought their evidence on 7-6-1997, in the interest of justice, they should have been granted one more opportunity to produce their evidence.
6. For the foregoing discussion, it is held that the Courts below had passed the impugned order/judgment and decrees illegally and with material irregularity. The same are, therefore, set aside and the case remitted to the trial Court with a direction that it shall grant one opportunity to the petitioners to produce their evidence and thereafter, proceed to decide the suit in accordance with the law. The parties are directed to appear before the trial Court on 7-11-1998. On the said date, the trial Court will fix another date for recording the petitioners' evidence. The revision petition is allowed with the above direction, leaving the parties to bear their own costs.