Law:

Section:

Civil Procedure Code (V of 1908)------O. XVII, Rr.2 & 3 read with O.IX; R.8---Pre-emption suit---Plaintiffs on the date fixed for evidence neither appeared nor produced. evidence---Provisions of O.IX, R.8 and those of O.XVII, R.3, C.P.C. were simultaneously invoked by Trial Court to non-suit the plaintiffs---Validity---Where parties failed to appear, Court had the discretion either to proceed under O.IX, C.P.C. or to make such other order as it thought fit---Order XVII, R.3, C.P.C. applied only when any party to the suit had been granted opportunity to produce evidence but it failed to cause attendance of his witnesses---Record proved that the adjourned date on which plaintiffs' suit was dismissed for non-production of evidence was the first date for their evidence and since the case was not adjourned on the request or on behalf of the plaintiffs, provisions of O.XVII, R.3, C.P.C. were inapplicable---Said provisions had application on parties present before the Court but had committed any of the defaults mentioned in that Rule---Plaintiffs being not present, no penal action under said provisions should have been taken against them---Where a party was absent the proper course to follow was to act under O.IX, C.P.C. and not under O.XVII, R.3, C.P.C. and power of Court to pass such other order as it thought fit was relatable to the case in which some material on record was available for decision on merit iii terms of O.XVII, R.3, C.P.C. and in absence of any material in form of evidence said rule should have been deserted by falling back to O.IX, C.P.C.---Provisions of O.XVII, R.2, instead of R.3 of the same Order were applicable in circumstances and suit was rightly restored by the appellate Court---High Court observed that case should have been decided on merits instead of divulging in technicalities by unnecessarily knocking out the litigants on the basis thereof. Jindwadda and others v. Abdul Hamid and another PLD 1990 SC 1192; K.P.W. Factors (Pvt.) Ltd. v. Shafqat Javed Cheema and others 1998 CLC 110; Muhammad Shafique v. Mst. Zahida Begum and others PLD 1995 Lah. 561; Messrs Yaqeen Ali & CO. v. Province of Sindh and 2 others 1992 CLC 760 and Wahid…

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