JUDGMENT SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD.
1st Appeal No.14 of 2016
1st Appeal No.15 of 2016
1st Appeal No.16 of 2016
1st Appeal No.17of 2016
DATE ORDER WITH SIGNATURE OF JUDGE
15.12.2016
Mr. Malik, Maqsood Ahmed advocate for appellant.
Mr. Anwar H. Ansari, State Counsel.
ORDER
Khadim Hussain Tunio, J: - By this order, I intend to dispose of above numbered appeals as common question of law and facts is involved in all the appeals.
2. Brief facts of the case are that, 25 paisa share equal to 07-10 ½ land of the applicant situated in S. Nos. 429(9-14), 436(4-34), 452 (3-24), 451 (5-03) and 460 (6-17) total admeasuring 29-02 acres situated in Deh Sukhpur, Taluka Sakrand was acquired by the respondents, passed such award on 14.12.2010 but the applicant being owner of the acquired land neither accepted the award nor received the amount of compensation, so determined by the respondents and filed Reference before the Court of IInd Additional District Judge, Shaheed Benazirabad.
3. The respondent No.1 appeared in the reference and filed written statement / comments denying the averments made in the reference.
4. On the pleadings of the parties, learned trial Court framed the following issues:-
1. Whether land acquisition reference filed by applicant is time barred and not maintainable at law?
2. Whether land in question has not been acquired as provided by law and required notices were not served.
3. Whether award has been passed properly after considering the all aspect of matter and compensation awarded to applicant has been withdrawn?
4. Whether the assessed rate of land in question is inadequate and requires to be revised?
5. Whether applicant is not entitled for any reliefs?
6. What should the order be?
5. After framing of issues, learned trial Court called upon the parties to adduce their evidence but after lapse of sufficient time, the appellant did not adduce evidence on one pretext or the other, hence the learned trial Court dismissed the reference under Order XVII Rule 3 CPC, hence the above appeals.
6. The learned counsel for the appellants contended that the learned trial Court passed the impugned order in violation of provisions contained in Rule 3 of Order XVII, C.P.C. In order to elaborate his arguments, the learned counsel contended that it was incumbent upon the learned trial Court to adjourn the case and not to dismiss the same and that too without there being any material on the record for arriving at a just and lawful conclusion. He further contended that the provisions of Rule 3 ibid are not mandatory but discretionary in nature and the Court in all circumstances is not obliged to follow the same. The appellant was not given warning notice under Order XVII, Rule 3, C.P.C. on preceding date of hearing.
7. Learned State Counsel submits that sufficient opportunities were provided to the appellants but he failed to produce his evidence, thus, there was no other option left for the trial Court but to strike of their right to produce evidence.
8. I have considered the submissions of learned counsel for the parties and carefully perused the available record.
9. The proceedings in the suit were fixed for recording of evidence of appellant on 20.02.2015, 28.03.2015, 28.05.2015, 16.07.2015, 18.08.2015, 10.09.2015, 09.10.2015, 02.11.2015, 26.11.2015, 15.12.2015, 16.01.2016 and 09.02.2016, but neither he attended the Court nor evidence was produced. In such eventuality, the Court can proceed under Rule 2 of Order XVII instead of resorting to provisions of Rule 3. The provisions of Rule 2 of Order XVII are reproduced for ready reference: ---
“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.”
10. In view of above facts, the provision of Rule ibid was applicable in the instant case and not Rule 3 but the learned trial Court invoked the provision of Rule 3 of Order XVII, C.P.C. which reads as under: --
“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 necessary 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.”
11. The learned trial Court incorrectly applied the provision of Rule 3 of Order XVII, C.P.C. Moreso, there was no material available on record to dismiss the suit, notwithstanding the provisions of above rule are not mandatory but discretionary in nature. Moreso, being penal, must be strictly construed and to be sparingly applied to the cases and that too where all the requirements prescribed under the law have been fulfilled. At the most, the learned trial Court, in absence of the appellants, could dismiss the suit under Order IX, C.P.C. or pass any other order as it deemed fit. However, it has not been viewed with appreciation by the superior Courts of the country that where in a case the entire evidence has not been brought on record the dismissal of the suit would not be the proper exercise of jurisdiction. Nonetheless, it amounts to augmenting the agonies of litigant public instead of providing relief within shortest possible time. In this regard, it is not out of place to mention here that the decisions on merits have become the cherished goal of law of the land and technicalities in the way of dispensation of justice have consistently been condemned to promote the cause of justice.
12. In view of the proposition of law as mentioned above more particularly the decision of case reported in 1991 MLD 1442 (Hamid v. Mst. Latifan and others), I am of the considered view that judgment and decree passed by learned trial Court could not be sustained as a result thereof, I allow the present appeal, set-aside the judgment and decree passed by learned trial Court for proceeding with the suit / Reference from the stage of recording of evidence of appellant / plaintiff and thereafter all the respondents by affording reasonable opportunity of hearing to the parties. Under the circumstances of the case the parties shall bear their own cost.
13. Before parting with this judgment, the learned District Judge Shaheed Benazirabad is directed to assign the matter to any other Additional District Judge of Judicial District, Shaheed Benazirabad other than learned IInd Additional District Judge, Shaheed Benazirabad. The parties are directed to appear before the Transferee Court on 19.01.2017 without further notice.
JUDGE