' This civil revision under section 115, C.P.C. Assails the order, dated 7-9-2000 passed by District Judge, Karachi, South in Civil Miscellaneous Appeal No,35 of 2000 and order, dated 20-4-2000 passed by Vth Civil Judge, Karachi South in Suit No,11315 of 1995 whereby the application under Order IX, rule 9, C.P.C. Filed by applicant/plaintiff was dismissed. The revision was allowed by a short order on 10-8-2001, hereinbelow are the reasons for the same.
2. The facts leadings to this revision, concisely stated are that Mst. Asmat Begum, the applicant filed a suit against Badiuzzaman Khan, the respondent (Suit No,1315 of 1995) seeking possession of a small room in Premises No,G/6, Plot No,3-D-RC-7, Ranchore Line. Quarters, Karachi (Mohandas Chandas Chandar Ban Building) and mesne profits at the rate of Rs,20 per day. The respondent/defendant contested the suit and filed his written statement.
3. On the pleadings of the parties the learned Civil Judge framed as many as 11 issues on 11-3-1999 and adjourned the matter to 22-3-1999 for the evidence of applicant/plaintiff. On 22-3-1999 applicant remained absent and her Advocate filed an application for adjournment which the learned Civil Judge rejected and in consequence thereof dismissed the suit for want of evidence.
On 27-3-1999 Advocate for applicant moved an application under Order IX, rule 9, C.P.C. Read with section 151, C.P.C. For recalling the aforesaid order and restoring the suit to its original position on the ground that on 22-3-1999 the applicant could not attend due to her illness and as such application for adjournment was moved by her Advocate on reasonable ground. Learned Civil Judge by his order, dated 20-4-2000 dismissed the application as not maintainable under the law.
The applicant preferred a miscellaneous appeal under Order XLIII, rule 1, C.P.C. Against the said order, which was also dismissed on the ground that the Civil Judge had dismissed the suit under Order XVII, rule 3, C.P.C. For want of evidence, therefore, the only remedy was to file an appeal against the said order and not a miscellaneous appeal under Order XLIII, rule 1, C.P.C.
4. I have heard learned counsel for parties and perused the relevant material placed on record in this file.
5. The controversy in substance relates to applicability of rule.2 or 3 of Order XVII, C.P.C. And it is to be determined, in the circumstances of the case, which of the two governs the impugned order.
Learned counsel for applicant referred to case-law and argued that the order passed by the trial Court squarely fell within the scope of Order XVII, rule 2, C.P.C., therefore, miscellaneous appeal was not competent. The central point in this case, therefore, essentially depends on interpretation of rules 2 and 3 of Order XVII, C.P.C. Which runs as under:-- "2. Procedure if parties fail to appear on day fixed.--- 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 directed in that behalf by Order IX or make such other order as it thinks fit.
3. Court may proceed notwithstanding either party fails to produce evidence etc.-- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessarily to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith."
6. Different aspects of the above provisions have been examined by the Courts from time to time and the main features have been highlighted for the purpose of applicability of either of the two.
7. In Abdul Aziz's case PLD 1971 SC 434 the Honourable Supreme Court held that rule 3, C.P.C. Applies to a case where time has been granted to a party at his instance to produce evidence or to cause attendance of witnesses or to perform any other act necessary for the progress of the suit and it will not apply unless default has been committed by such party in doing the act for which the time was granted. Similarly, in Qutub Din's case PLD 1991 SC 1109 the order of dismissal of suit under Order XVII, rule 3, C.P.C. Passed on a date when the previous adjournment was not on the request of the plaintiff was set aside by the Honourable Supreme Court.
8. This Court had observed in Abdul Shakoor's case PLD 1963 West Pakistan (Karachi) 356 that rule 2, C.P.C. Applies to hearings adjourned at the instance of a party and that the distinguishing feature of rule 3, C.P.C. Is that there must be material on record for the Court to proceed to decide the suit.
9. A review of the case-law and a discreet break up of rule 3,Order XVII, C.P.C. Would indicate that the predominant factors requisite for the application of this rule in contradistinction with rule 2 of the same would be as follows:--
(1) The case must have been adjourned or time granted on the request of a party;
(2) The purpose of granting time/adjournment to the party shall be: (i) to produce his evidence, (ii) to call the attendance of his witnesses, or (iii) to perform any other act necessary to further progress of the suit;
(3) The party to whom adjournment/time was granted defaulted/ failed to perform the act(s) for which the adjournment/time was granted;
(4) There shall be some material on record and the Court shall proceed to decide the suit forthwith on the basis of such material;
(5) Such decision shall be made within a reasonable time if not on that very day;
(6) All these conditions shall co-exist and absence of any of these conditions shall exclude the applicability of this rule and in that event in case of default the case may fall within the domain of rule 2 of Order XVII, C.P.C.
10. Learned counsel for respondent relying on Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474 submitted that the impugned order was passed by the Civil Judge under Order XVII, rule 3, C.P.C., therefore, it was a judgment on merits and only a regular appeal could be filed against the same. It is true that the Honourable Supreme court has observed that in case of dismissal of suit under Order XVII, rule 3, C.P.C., the order would amount to judgment but in the cited case it was also observed that under Order XVII, rule 3, C.P.C., the Court was required to proceed and decide the suit forthwith where party failed to produce its evidence or to do any other act necessary for the purpose of case for which time has been allowed to him. Incidentally in that case there was persistent failure on the part of plaintiff to produce his evidence unlike the instant case where on the first date of hearing after framing of issues the suit was dismissed despite the fact that adjournment application was duly moved. Moreover, adjournment was not sought by the applicant on the previous day. Nevertheless, the main contention in the cited case under discussion was whether the appeal without filing copy of decree was competent. The facts forming the basis of passing the order in that case were altogether different the principle laid down therein was not directly applicable to the instant case.
11. Learned counsel for respondent further relied on Naseem Javed v. National Bank of Pakistan PLD 1985 Pesh.
91. The facts of this case are also totally different. The plaintiff's evidence was duly recorded and the matter was fixed for evidence of defendant and it was adjourned for five times at the request of defendant whereafter his side of evidence was closed and the suit was decided on the basis of the evidence of plaintiff recorded by the trial Court. Obviously, the adjournment was sought by party and then on the fateful date the merits of the case were adverted to by adjudicating upon the controversy on the basis of evidence of the plaintiff recorded by the trial Court, which is not the case in the revision in hand.
12. Further reliance was placed by the learned counsel for respondent on National Bank of Pakistan v. Abdul Majeed 1984 CLC 2893 wherein a preliminary decree was passed with the consent of one of the defendants and even then the pleadings were duly considered. In the instant ease the learned Civil Judge has absolutely kept away from the pleadings while there was no evidence otherwise on record. Benefit of the cited authority would, therefore, not be available to the respondent.
13. Now, with relation to the facts of the instant case it becomes quite convenient to form a clear opinion about the applicability of rule 2 of Order XVII, C.P.C. Admittedly, the issues were framed on 11-3-1999 by adopting the issues, and on that date none of the parties was present. The diary sheet dated 11-3-1999 further shows that within the meaning of rule 1, Order XVI, C.P.C. Parties were directed to file list of witnesses and documents within 7 days thereof and the matter was adjourned to 22-3-1999. The record bears evidence to the effect that on 11-3-1999 the suit was not adjourned on the request of applicant/plaintiff, the foremost pre-requisite for application of rule 3, Order XVII, C.P.C., therefore, expressly lacks in this case. Secondly, on 22-3-1999 that is to say on the first date after framing of the issues, learned Civil Judge unscrupulously believed the version of counsel for defendant/respondent that the applicant might i,ave lost interest in the case.
Nevertheless, learned Civil Judge was required to proceed on the basis of material on record, but while rejecting the adjournment application he passed the following order:-- "Order ' Since no ground for adjournment. The case/suit is pertaining to the year 1995. I hereby reject the adjournment application; the suit is dismissed for want of evidence."
14. It goes without saying that the above order does not touch the material whatsoever available on record nor is it on merits. Two outstanding conditions for applicability of rule 3, Order XVII, C.P.C.
Are again lacking. It would not be out of the place of emphasize with respect to the import of rule 3, Order XVII, C.P.C. That indeed, the law favours decision on merits rather than on technicalities unless the party concerned is guilty of gross negligence within the contemplation of rule 3, Order XVII, C.P.C. Reliance is placed on Zahoor Ahmed v. Mehra 1999 SCM R 105.
15.On a clear understanding of the order, dated 22-3-1999 it is established that it was not an order within the purview of rule 3, Order XVII, C.P.C. But at the most it could be an order under rule 2, Order XVII, C.P.C. No appeal, therefore, was required to be filed under section 96, C.P.C. The contention of learned counsel for respondent in this regard is as such repelled.
16. All the same, the initial order, dated 20-2-2000 passed by learned Civil Judge that dismissal of the suit for want of evidence was a decree can also not be sustained. It was in substance an order under rule 2 of Order XVII, C.P.C. And the suit was disposed of within the meaning of Order IX, C.P.C.
As laid down in the said rule. The law is well-settled that in that event, no appeal could lie against the said order and the E appropriate remedy was to seek redress under Order IX, rule 9 or 13 as the case may be. The application under Order IX, rule 9, C.P.C. Moved IF by the applicant in the trial Court was, therefore, competent and it was dismissed in absolute disregard of the legal position.
17. In view of the above discussion it may be concluded that both the orders called in question are in utter disregard of the legal position and have resulted in grave miscarriage of justice as such are amenable to revisional jurisdiction of this Court.
18. For the aforesaid reasons both the impugned orders are reversed and the case is remanded to trial Court for disposal of the suit in accordance with law after calling upon the parties to lead evidence and hearing them. Since the matter has been proceeded on a law point there shall be no order as to costs.