Law: Civil Procedure Code (V of 1908)

Section: O.XVII,r.3

Law: Civil Procedure Code (V of 1908)

Section: O.XVII,r.3

Civil Procedure Code (V of 1908)-------O. VII, R.2 & O.XVII, R.3---Suit for recovery of amount---Striking off right of defence---Evidence of the plaintiff was recorded and was concluded by the Trial Court and case was fixed for evidence of the defendants---On adjourned date of hearing evidence of the defendants being absent, one chance was given to defendants on payment of cost and case was adjourned---On adjourned date of hearing evidence of defendants being not available, notice under O.XVII, R.3, C.P.C. was given and case was fixed for evidence---Evidence of the defendants being not available on the said fixed date, their right of defence was struck off and suit was decreed---On date when defence of defendants was struck off neither defendant was present nor his evidence was available and the Trial Court proceeded against them under O.XVII, R.3, C.P.C. and right of defence of the defendants was struck off---Validity---Court could not pass such an order in the absence of the defendants as the court could pass such order in the presence of the party and in case of non-availability of the evidence---Only two chances had been given and thereafter provisions of O.XVII, R.3, C.P.C. were pressed into service---Impugned had revealed that Trial Court had not discussed and appreciated the evidence of the plaintiff---Absence of defendants' evidence would not mean that whatever was produced by the plaintiff in the shape of evidence was to be believed--Court was bound to assess and examine the evidence and thereafter form an opinion---No such efforts having been made by the courts below, impugned s and decrees of both the courts were not "speaking one"---By not giving sufficient opportunity to the defendants for producing evidence, the Trial Court had committed error and denied defence and condemned the defendants unheard---Impugned s and decrees of both the courts below were set aside and case was remanded to the Trial Court with the directions to record evidence of the defendants. Noor Gul Khan Marwat for Petitioners. Abdul Qayum Qureshi for Respondents. Date of hearing: 14th December, 2009. JUDGMENT ATTAULLAH KHAN, J.--- Through this civil revision the petitioners…

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