2024 CLS 5

Other citations: 2022 LHC 6996 = 2024 CLC 49

[Lahore High Court]

Before Shahid Bilal Hassan, J

Muhammad Yaqoob and others—Petitioners

versus

Raheela Yousaf and others—Respondents

Civil Revision No. 18764 of 2022, heard on 11^th October, 2022.

HEADNOTE

Civil Procedure Code (V of 1908) —

— O. XVII, R. 3 & S. 24A — Dismissal of suit for non-production of evidence — Appearance of parties on transfer of suit — Scope — The petitioners initiated legal action seeking declaration with permanent and mandatory injunction against the respondents — However, the petitioners failed to present their evidence as required by the trial Court — Consequently, the trial Court, citing Order XVII, Rule 3 of the Code of Civil Procedure dismissed the suit due to lack of evidence — Validity — High Court observed that the case was transferred from one Court to another under an administrative order without issuing notice to the parties or their counsel — The absence of such notice violated procedural norms, as the transfer was not under the specific provisions outlined in section 24-A(2) of the Code of Civil Procedure, where parties are directed to appear before the transferee Court — The impugned order was harsh, especially considering that the petitioners were not informed about the transfer, preventing them from presenting their evidence — Moreover, they were not warned about the consequences of their failure to produce evidence — This failure to inform the petitioners contravened the principle that cases should be decided on their merits, with technicalities not impeding the administration of justice — High Court remanded the case to the trial Court. [Para. No. 3 & 4]

Azizullah Khan and 4 others v. Arshad Hussain and 2 others (PLD 1975 Lahore 879) relied.

Mian Zaffar Iqbal Kalanauri, Advocate for petitioners.

Basharat Ali Gill, Additional Advocate General Punjab for respondents no. 2 & 3.

Respondents no. 1 & 4 ex parte.

Date of hearing: 11^th October, 2022.

JUDGMENT

Shahid Bilal Hassan, J:—Succinctly, the petitioners instituted a suit for declaration with permanent and mandatory injunction against the respondents, which was duly contested by them. Out of the divergent pleadings of the parties, the learned trial Court framed issues and fixed the suit for evidence of the petitioners/plaintiffs but they failed to adduce their evidence; therefore, the learned trial Court vide impugned judgment and decree dated 14.12.2020 dismissed suit of the petitioners for want of evidence under Order XVII, Rule 3, Code of Civil Procedure, 1908. The petitioners being aggrieved preferred an appeal but it was dismissed in limine vide impugned judgment and decree dated 14.01.2022 by the learned Addl. District Judge, Gujranwala; hence, the instant revision petition.

2.           Heard.

3.           It is an established and admitted fact on record that when under administrative order the case was transferred from one Court to the other Court, no notice parvee was issued by the transferee Court to the parties or their counsel, as is evident from the order dated 05.11.2020, which divulges that the case was received through transfer under administrative order passed by the learned District Judge, Gujranwala and the Advocates were observing strike and the learned trial Court adjourned the case by giving absolute last opportunity for evidence of the plaintiffs. It is observed that instead of passing such an order, giving absolute last opportunity, the learned trial Court ought to have issued notices parvee to the parties, because the case was transferred under administrative order and not under section 24-A(2) of the Code of Civil Procedure, 1908 where the parties are directed to appear before the learned transferee Court and if party fails to appear then penal order can be passed against such party; however, here the case is not as such, rather otherwise, as highlighted above. Para 6, Chapter XIII, Volume I of High Court Rules and Orders provides:-

“6. When a case is transferred by administrative order from one Court to another, the Presiding Officer of the Court from which it has been transferred shall be responsible for informing the parties regarding the transfer, and of the date on which they should appear before the Court to which case has been transferred. The District Judge passing the order of transfer shall see that the records are sent to the Court concerned and parties informed of the date fixed with the least possible delay. When a case is transferred by judicial order the Court passing the order should fix a date on which the parties should attend the Court to which the case is transferred.’

However, in the present case, none of the requirements enunciated in the above para 6 of the Chapter XIII, Volume I of the High Court Rules and Orders has been adhered to because nothing is on record to suggest that the Court from which the case was transferred ever informed the parties to appear before the transferee Court on such and such date, rather it has manifested from the record that the case was transferred under administrative order without fixing a date to appear before the transferee Court and no information in this regard was imparted to the parties; thus, it was required by the learned transferee Court to issue notice parvee to the parties and their counsel, fixing a date to appear before it. In such scenario, what to speak of passing of a penal order without putting the petitioners on caution as has been held by the Apex Court of the country in a judgment reported as Moon Enterprises CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another (2020 SCMR 300); thus, the said precedent being on different facts is not attracted in the instant case and the ratio of the same has wrongly been appreciated by the learned subordinate Courts.

This Court while dilating upon a case of almost identical facts, wherein the defendant was proceeded against ex parte by the Court where the suit was pending and was transferred to some other Court under administrative order and without issuing notice to him he was proceeded against ex parte, reported as Azizullah Khan and 4 others v. Arshad Hussain and 2 others (PLD 1975 Lahore 879) has held:-

‘According to section 24-A(2), C.P.C. and the relevant rule of High Court Rules and Orders, as referred to above, if the order of the learned District Judge transferring the case had been passed in the presence of the absentee defendants or they had been intimated in accordance with that order, then in case of their absence before the transferee Court they could be lawfully proceeded against ex parte. If the absentee defendant can join the proceedings at the subsequent stage even after ex parte order has been passed against him, as also held in Messrs Landhi Industrial Trading Estages Ltd., Karachi v. Government of West Pakistan through Excise & Taxation Officer 1970 SCMR 251, then how it can be presumed that in the absence of any intimation duly furnished to him with regard to transfer of the case from one Court to another he can be proceeded against ex parte simply on the basis of ex parte order already passed against him. His right to join future proceedings implies that after the transfer of the case from the Court where such proceedings are pending if the same have not been transferred in his presence or without intimation to him, then he cannot be proceeded against ex parte unless duly served upon with regard to transfer of the case to the successor Court. In this view of the matter the contention of the learned counsel for the respondents, that since there is no clear provision in the amended law to issue notice to the parties after the case has been received on transfer, therefore, said notice cannot be issued, has no substance. As laid down in 1970 SCMR 251, the rules of procedure as laid down in the Code are principally intended for advancing justice and not for retarding it on bare technicalities.’

4.           Pursuant to the above discussion it can safely be held that the impugned order/judgment and decree, dismissing the suit for want of evidence, is harsh in nature, especially when after transfer of the case from one Court to the other Court, the petitioners were not informed, so as to enable them to produce their evidence and even they were not warned to face the consequences in case of their failure to produce complete set of evidence; thus, the impugned order, judgments and decrees cannot be allowed to hold field further, because it is requirement of law that cases should be decided on merits and technicalities should not be allowed to hinder the administration of justice. Moreover, this Court while exercising revisional jurisdiction under section 115 of the Code of Civil Procedure, 1908, has ample power to correct the illegality and irregularity committed by the learned Courts below.

5.           The crux of the discussion above is that the revision petition in hand is allowed, impugned order 14.12.2020, judgments and decrees passed by the learned Courts below are set aside and case is remanded to the learned trial Court which will be deemed to be pending at the stage when the impugned order dated 14.12.2020 was passed with a direction to afford two clear opportunities to the petitioners for production of their complete set of evidence. The parties are directed to appear before the learned trial Court on 27.10.2022, positively. No order as to the costs.

Case remanded