Citation Name : 2012 YLR 2658
LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD JAMIL
Side Opponent : Mst. INAYAT BEGUM
Ss.114, 115, O. IX, Rr. 3, 4, O. XVII, Rr.2, 3 & XLVII, R.1---Pendency of application for restoration of suit dismissed for non-prosecution ---Non-appearance of both the parties on adjourned date of hearing fixed forapplicant's evidence---dismissal of such application by Trial Court for non-prosecution and non-production of evidence---Application for restoration of such dismissed application filed on the same day, which was dismissed by Trial Court for not being maintainable---Applicant's plea that his application for restoration of such dismissed application was maintainable under O.IX, R.4, C.P.C. as adjourned date of hearing had not been granted on previous date at his request---Respondent's plea that word "or" as used in O.XVII, R.2, C.P.C. would amount to "and" empowering court to dismiss suit on grounds of non-prosecution and non-production of evidence simultaneously, thus, impugned order was valid---Validity--While exercising powers under O.XVII, R.3, C.P.C. record must show that preceding date had been obtained by defaulting party, otherwise his right to lead evidence could not be closed---Power of court to "make such other order as it thinks fit" would relate to a case in which some material in for m of evidence was available on record---In absence of plaintiff and any evidence on record, provisions of O.XVII, R.3, C.P.C. would not apply, rather R.2 thereof would be attracted and must be applied by court---Record showed that present case had not been adjourned at applicant's request on previous date---Parties ought to be provided adequate opportunity in order to save their valuable rights for being trampled on technical grounds---Applicant had rightly made application for restoration under O.IX, C.P.C.---Trial Court had passed impugned order by applying wrong provisions of law, thus, committed an illegality apparent on face of record, which could be corrected in exercise of power provided under O.XLVII, R.1, C.P.C.---High Court set aside impugned order and directed Trial Court to decide such application on merits within specified time.
Side Appellant : MUHAMMAD JAMIL
Side Opponent : Mst. INAYAT BEGUM
Ss.114, 115, O. IX, Rr. 3, 4, O. XVII, Rr.2, 3 & XLVII, R.1---Pendency of application for restoration of suit dismissed for non-prosecution ---Non-appearance of both the parties on adjourned date of hearing fixed forapplicant's evidence---dismissal of such application by Trial Court for non-prosecution and non-production of evidence---Application for restoration of such dismissed application filed on the same day, which was dismissed by Trial Court for not being maintainable---Applicant's plea that his application for restoration of such dismissed application was maintainable under O.IX, R.4, C.P.C. as adjourned date of hearing had not been granted on previous date at his request---Respondent's plea that word "or" as used in O.XVII, R.2, C.P.C. would amount to "and" empowering court to dismiss suit on grounds of non-prosecution and non-production of evidence simultaneously, thus, impugned order was valid---Validity--While exercising powers under O.XVII, R.3, C.P.C. record must show that preceding date had been obtained by defaulting party, otherwise his right to lead evidence could not be closed---Power of court to "make such other order as it thinks fit" would relate to a case in which some material in for m of evidence was available on record---In absence of plaintiff and any evidence on record, provisions of O.XVII, R.3, C.P.C. would not apply, rather R.2 thereof would be attracted and must be applied by court---Record showed that present case had not been adjourned at applicant's request on previous date---Parties ought to be provided adequate opportunity in order to save their valuable rights for being trampled on technical grounds---Applicant had rightly made application for restoration under O.IX, C.P.C.---Trial Court had passed impugned order by applying wrong provisions of law, thus, committed an illegality apparent on face of record, which could be corrected in exercise of power provided under O.XLVII, R.1, C.P.C.---High Court set aside impugned order and directed Trial Court to decide such application on merits within specified time.
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