Ikram Ullah vs Mst:Farkhanda Habib

2012 C L C 569 [Peshawar]

Before Miftah-ud-Din Khan and Waqar Ahmad Seth, JJ

IKRAM ULLAH----Petitioner

Versus

Mst. FARKHANDA HABIB and 3 others----Respondents

Writ Petition No.1098 of 2011, decided on 17th October, 2011.

Civil Procedure Code (V of 1908)---

----O. XVI, Rr.1, 10 & 12---Specific Relief Act (I of 1877), Ss.42 & 54---Constitution of Pakistan, Art.199---Constitutional petition---Suit for declaration and permanent injunction--- Summoning and attendance of witnesses through process of court---Defendant filed application for summoning the witnesses mentioned in the list of witnesses through process of the court--- Said application was dismissed by the Trial Court and Appellate Court below on the ground that the defendant was just trying to prolong the matter; and that said witnesses residing at different places, their service could not be procured for one and the same date---Validity---Courts had been given powers to compel the attendance of witnesses to give evidence where they did not respond to summons ordinarily or where they were availing appearance---Courts below without following the law on the subject refused to accede to the request made by the defendant as there was no sanction of law for refusing such a request---Court could, in exercise of its inherent powers to prevent abuse of the process of the court, declare to accede to such a request where on the face of record it was found that the party was deliberately seeking to prolong the case to the disadvantage of other side; and that the evidence sought to be adduced had no bearing on the decision of the case---No provision was available in the C.P.C., whereunder the responsibility could be put on a party to produce its evidence on pain of using its right to produce that evidence---Even, in a case where a party undertook to produce its own evidence, but then reported its inability to do so; and applied for process of the court for the attendance of its witnesses, there was no sanction in law for refusing such request---Record had shown that the documents relied upon by the defendant were to be proved on some cogent evidence because he was the beneficiary of the same---No one could be deprived of legal rights to defend his case by affording proper opportunities---Policy of early disposal of cases could not be supreme to substantial justice an inviolable principle of justice would hold the highest pedestal---No cogent reasons for its refusal having been given, same could not hold the field---Orders passed by courts below being illegal, same were set aside---Trial Court was directed to summon the desired witnesses of the defendant through court process as contained in O.XVI, C.P.C.

Asad Jan for Petitioner.

Javed Ali for Respondents.

Date of hearing: 17th October, 2011.

JUDGMENT

WAQAR AHMAD SETH, J.--- Called into question is the order dated 16-3-2011 passed by learned Additional District Judge-II Takht Bhai whereby the revision petition filed by petitioner against the order dated 18-12-2010 passed by learned trial court has been dismissed.

2.Background of the controversy is that the respondent No.1 filed a suit for declaration and permanent injunction to the effect that she is owner of the suit property, fully described in the heading of the plaint, and thus gift Mutation No.632 dated 19-9-2005 is wrong, illegal and ineffective upon her rights, hence the same was sought to be cancelled. A prayer for possession of the suit property was also contained in the plaint.

3.Petitioner was put on notice, who contested the suit by filing written statement raising certain legal and factual objections therein. From divergent pleadings of the parties, issues were framed and case was put for recording evidence. Respondent No.1 produced her evidence and

closed the same while the case was fixed for recording evidence of petitioners. Partial statements of D.W.2 and D.W.3 were already recorded and statement of Patwari Halqa as C.W.1 also stood recorded.

4.In the meanwhile, petitioner submitted two applications i.e. one for permission to requisition the record of the Cases bearing Nos.60/1, 60/1 Neem, 215/1, 181/1 and 41/1 and the other for summoning the witnesses mentioned at Sr.Nos.6 to 10 and 13 through process of the court. The learned trial court allowed the former application while the latter was dismissed. Feeling aggrieved, the petitioner filed revision petition, which could not bear fruit and was dismissed, hence the constitutional petition in hand.

Arguments heard. Record perused.

5.The contention of petitioner is that persons mentioned in the list of witnesses from Sr.Nos.6 to 10 and 13 produced by him be summoned through the court process. This plea of the petitioner was declined by learned courts below on the ground that he is just trying to prolong the matter and nothing else and that the above witnesses are residing at different places, hence their service could not be procured for one and the same date.

6.Order XVI of C.P.C. deals with summoning and attendance of witnesses. Rule 1 thereof provides that the parties at any time after the suit is instituted, may obtain, on application to the court or to such officer as it appoints in this behalf, summonses to person whose attendance is required either, to give evidence or to produce documents. Rule 2 provides for the expenses of the witnesses to be paid into court when applying for summon, for their attendance. Rule 10 provides that where a person fails to comply with summonses and the court sees reason to believe that the evidence of the witness is material, and such person has, without lawful excuse, failed to attend, or has intentionally avoided service, it may issue a proclamation, requiring him to attend to give evidence or to produce documents. A copy of such proclamation is to be affixed on the outer door or conspicuous part of the house in which the witness ordinarily resides. Under sub-rule 3 of this Rule, the court can also, in lieu of or at the time of issuing such proclamation, or at any time afterwards, issue a warrant, either with or without bail, for 'the arrest of such person, and may also make an order for the attachment of his property in such amount as it thinks fit, not exceeding the cost of attachment, and of any fine which may be imposed, which is Rs.500 the maximum, as laid down in rule 12 of the same Order. From perusal of the above provision of law, it is clear that the courts have been given powers to compel the attendance of witnesses to give evidence where they do not respond to summonses ordinarily or where they are avoiding appearance.

7.In the instant case, the petitioner produced list of witnesses and sought some of them to be summoned through process of the court and subsequently filed an application dated 18-12- 2010 for the same purpose but the courts below without following the law on the subject refused to accede to the request made by him as there is no sanction in law for refusing such a request. The court may, in exercise of its inherent powers to prevent abuse of the process of the court, decline to accede to such a request where on the face of record it is found that the party is deliberately seeking to prolong the case to the disadvantage of other side and that the evidence sought to be adduced has no bearing on the decision of the case. There is no provision in the Code of Civil Procedure whereunder the responsibility can be put on a party to produce its evidence on pain of using its right to produce that evidence. Even, in a case where a party undertakes to produce its own evidence but then reports its inability to do so and applies for process of the court for the attendance of its witnesses, there is no sanction in law for refusing such a request. In the present case, petitioner/defendant No.2 initially in his list of witnesses mentioned the same and subsequently at his own turn i.e. at the start of his evidence he again requested through application dated 18-12-2010. The perusal of the record shows that the documents relied upon by the petitioner are to be proved on some cogent evidence because he is the beneficiary of the same, therefore, no one can be deprived of legal rights to defend his case by affording proper opportunities.

8.Policy of early disposal of cases cannot be supreme to substantial justice an inviolable principle of justice shall hold the highest pedestal. No cogent reasons for its refusal are given, therefore, the same cannot hold the field.

9.In view of the above, on acceptance of this writ petition, it is held that the orders passed by learned courts below are illegal, hence the same are set aside, hence the trial court is directed to summon the desired witnesses of the petitioner through court process as contained in Order XVI of the Civil Procedure Code.

H.B.T./325/P Petition accepted.