MUHAMMAD NOOR vs MUHAMMAD USMAN O — 2021 PLD 51 QUETTA-HIGH-COURT-BALOCHISTAN

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MUHAMMAD NOOR VS MUHAMMAD USMAN O. XVII, Rr. 2 & 3 & O. IX---Specific Relief act (I of 1877), Ss. 42 & 39---Suit for declaration and cancellation of sale-deed---Dismissal of the suit for non-prosecution and lack of interest---Effect---appellate Court upheld the Trial Court's view---Validity---Held, that there was distinction between R.2 & R.3 of the O.XVII, C.P.C.; in R. 2 of the said Order, where the suit was adjourned, the parties or any of them failed to appear, the Court could proceed to dispose of the suit in one of the modes prescribed under O.IX, C.P.C. or could make such order as it thought fit; while under R. 3, when time was granted and any party failed to produce his evidence or to cause the attendance of his witnesses or to perform any other act, which was necessary for further progress of the suit, on default, the Court would proceed to decide the suit forthwith---To attract the procedure laid down under O.XVII, R.3 of the C.P.C.; firstly adjournment must have been on the instance of a party and secondly there must be material on record for the Court to peruse and decide the case---For proceedings under O. XVII, R. 3, C.P.C., there had to be material to decide the suit forthwith---Trial Court, in the present case, proceeded to decide the suit forthwith, without having any material before it, and thus, had acted in its jurisdiction illegally and with material irregularity---Trial Court, in the present case, had not even discussed the material available on record and dismissed the suit for lack of interest and non-prosecution, which did not fulfil the requirement of O. XVII, R. 3, C.P.C.---While appellate Court decided the case on merit and suit was dismissed on the ground that land-in-question was unsettled one, therefore, the plaintiff had no title---Said judgment of the appellate Court was not according to the law as there was no provision in the law where the settlement having not been conducted by the concerned state functionaries, the inhabitant(s) of the Unsettled areas would lose his/their title---High Court set aside the decrees and judgments passed by both the Courts below and remanded the case to the Trial Court with direction to provide two opportunities to the petitioner/plaintiff to produce his evidence---Revision was allowed, in circumstances.

MUHAMMAD NOOR vs MUHAMMAD USMAN O — 2021 PLD 51 QUETTA-HIGH-COURT-BALOCHISTAN

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