' For the order I propose to pass in this case, the statement of .The pleaded facts would not be necessary. Suffice it to say that. After completion of the pleadings' of the parties in a suit filed by the petitioner on 17-12-1990 issues were framed on 29-5-1991. It so happened that on the same date the learned trial Court had decided the stay application. The case was adjourned for recording evidence of the parties to, 6-101991. On this date it was reported that an appeal against the said interim order has been filed. Thereafter, the file was received back on 20-4-1993. On this date the case was adjourned to 14-6-1993 for recording of evidence of the petitioner but the evidence was not present on 14-6-1993 and the case was adjourned to 13-9-1993. On this date the case was not taken up because of election duty and was adjourned to 16-11-1993. On this date it was found that the petitioner had filed an application seeking permission to summon witness. This application was disposed of on 14-12-1993 and the case was adjourned to 7-1-1994 for recording evidence of the petitioner. On this date no one appeared for the petitioner but the learned trial Court proceeded to dismiss the suit for absence of evidence (4-11-,,,,rjrt-co ). A decree sheet was also prepared. On 20-1-1994 the petitioner filed a first appeal which was heard by a learned Additional District Judge, Lahore who dismissed the same on 9-1-1995.
2. Learned counsel for the petitioner contends that since on the said date the petitioner was absent, the case could not have been decided under Order XVII, rule 3, C.P.C. According to the learned counsel the impugned judgments and decrees are without jurisdiction. Learned counsel for respondents Nos.6 and 7 have tried to support the impugned order. No one has turned for respondents Nos.1 to 5 to whom notices have been issued for today but no one is present on their behalf. They are proceeded against ex parte.
3. I have already reproduced above the proceedings that took place in the learned trial Court. I find that on 14-12-1993 the application filed by the petitioner was decided and allowed and the case was ordered to be fixed for 17-1-1994 for the evidence of the petitioner. Now condition precedent Jot invoking the penal provisions of the Order XVII, rule 3, C.P.C. Is that the case must have been adjourned to a date on the application of the party for doing the requisite act. In the present case a bare reading of the order sheet would show that the case was not adjourned for 17-1-1994 on the application or request of the petitioner but was adjourned in routine after the decision of the application. The, learned trial Court, therefore, had no jurisdiction to close the evidence of the petitioner on the said date and to decide the suit under Order XVII, rule 3, C.P.C.
4. I am also in agreement with the learned counsel for the petitioner that in the absence of a party the, matter is to be proceed with under Order XVII, rule 2, C.P.C. Read with the relevant provisions , of Order IX, C.P.C. And not under Order XVII, rule 3, C.P.C.. Thus, on both counts the learned trial Court had passed an order without lawful authority on 17-1-1994.
5. Coming to the impugned judgment of the learned Additional District Judge, Lahore, the learned Judge has observed that it is true that the petitioner was absent on 17-1-1994 but he did not find it a gainful exercise to remand the case to the learned trial Court directing it to dismiss it under Order XVII, rule 2, C.P.C. According to the learned Judge it would be mockery of law. Obviously, the learned Additional District Judge has not cared to read the order sheet. Besides he has also lost sight of the fact that whereas judgment under Order XVII, rule 2, C.P.C. Is by default a judgment under Order XVII, rule 3, C.P.C. Has to on merits. Such a judgment is missing in this case. Be that as it may, the observations of the learned Additional District Judge in his impugned order remind me of observations made by Mr. Justice . Nasim Hasan Shah (as his lordship then was) in the case of 'Rashad Ehsan and others v. Bashir Ahmad and another (PLD 1989 SC 146) to the following effect at page 150 of the report:--- "The law sometimes is called an ass but the Judge should, as far as possible, try not to become one."
' The law in question i,e, Code of Civil Procedure was enacted as far back as in the year 1908 and thereafter has been interpreted on innumerable occasions. The said conditions for the applicability of Order XVII rule 3, C.P.C. Are by now settled and so' is the case with proceedings on an adjourned date when a party is absent. In the present case the learned trial Court, on the one hand marked the petitioner absent and on the other, accused him of not bringing the evidence. The inconsistency is but obvious.
6. For all the reasons stated above this civil revision is allowed. Both the impugned judgments and decrees of the learned Courts below are set aside. The result would be that the suit filed by the petitioner shall be deemed to be pending before the learned Senior Civil Judge, Lahore where the parties shall appear on 30-4-2002. The learned Senior Civil Judge shall also issue notice to respondents Nos.1 to 5 and thereafter proceed from the stage where the things were on 17-1-1994.
The petitioner shall be given an opportunity to lead evidence and thereafter evidence of the defendants in the case shall be recorded. The suit shall be decided on the basis of the evidence so recorded. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.