' Shortly narrated the facts relevant for the disposal of instant civil petition are that Nawab Ali, proprietor, National Medicine Company, Mardan, plaintiff, instituted suit in the Court of Senior Civil Judge, Peshawar against Imtiaz Khan, Chief Executive Messrs Imco Pharmaceutical Industries (Pvt.)
Limited, Peshawar, defendant for recovery of Rs,20,575 on account of medicines returned after terminating the agreement, dated 12-5-1994. It was averred in the plaint that plaintiff used to deal in medicine business and in this respect an agreement was executed between him and the defendant on 12-5-1994. Subsequently, the agreement was terminated. The defendant promised to pay the price of the returned medicines but he did not honour his commitment which led the plaintiff to file suit.
2. The suit was resisted on various grounds legal as well as factual. The claim of the plaintiff was denied and an amount of Rs,16,865 was stated to have been paid to him. The pleadings of the parties gave rise to the framing of following issues:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether the suit of the plaintiff is mala fide?
(3) Whether the suit is within time?
(4) Whether the suit in its present form is bad and liable to be dismissed.
(5) Whether the plaintiff has filed the suit with the intention to damage the reputation and good- will of the defendant's business?
(6) Whether the defendant has got the right of receiving damages and heavy cost from the plaintiff on dismissal of the suit?
(7) Whether the plaintiff has violated the provision of the agreement, dated 12-5-1994, if so, its effect?
(8) Whether the parties have cleared the accounts on 6-6-1995 and the plaintiff received an amount of Rs,16,865 and no amount is outstanding upon the company?
(9) Whether the plaintiff has wound up his duties according to the agreement dated 12-5-1994 without prior notice to the Company?
(10) Whether the suit is liable to be dismissed without any further proceedings, being against law and Sharia as such this Court has no jurisdiction to entertain the same?
(11) Whether the suit is liable to be rejected under Order VII, rule 11, C.P.C. For non-affixation of court- fee and lesser valuation?
(12) Whether the plaintiff is entitled to the decree as prayed for?
(13) Relief?
3. The plaintiff in order to prove his claim appeared as P.W.1 and produced Farman Ali and Noor Ahmad Shah as P.W.2 and P.W.3 respectively. In rebuttal, solitary statement of defendant was recorded as D.W.1. Upon consideration of the material on record, learned Civil Judge, Peshawar, seized of the matter, dismissed the suit vide judgment and decree, dated 30-4-2004, which was maintained in appeal by learned Additional District Judge, Peshawar vide his judgment dated 16- 10-2004. Hence the instant revision petition.
4. M. Saleem Khan Toru, Advocate for the petitioner bitterly criticized the judgments and decrees of the Courts below and attempted to argue that sufficient material was available on the file to substantiate the claim of the plaintiff which has been excluded out of consideration and kept aside without any justifiable reason which has resulted in manifest injustice. The learned counsel reiterated that the impugned decisions are outcome of misreading and non-reading of evidence and cannot be allowed to remain intact. In this regard he placed reliance on Muhammad Sain v.
Muhammad Din 1996 SCM R 1918.
5. Mian Fazle Amin, Advocate for the respondent, on the other hand, contended that both the Courts below properly appraised the evidence on record and their judgments are not tainted with any illegality/irregularities thus, those are not open to interference in revisional jurisdiction. The learned counsel also submitted that the statement of respondent has remained unchallenged and thus, the same was considered sufficient to dislodge the claim of the petitioner. To support the plea reliance was placed on Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633.
6. I have examined both the judgments passed by the Courts below and find that the same are unexceptionable, legal apt to the facts and circumstances of the case and do not call for any interference by this Court. It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. The judgments impugned in all respects, are not arbitrary or fanciful and fulfil all the requirements of doing justice on the basis of canons known in this behalf. The learned counsel has not been able to point out any misreading or non-reading of evidence on the part of the forums below. It may be recalled here that Accountant of the respondent-Company stated to have issued receipt in favour of the petitioner, has not been examined. So is the case with Khoban Shah. It has been rightly contended on behalf of the respondent that best available evidence has been withheld by the petitioner without any reason. It needs no reiteration that withholding of best available evidence is not desirable and an adverse presumption is drawn against the party withholding such evidence. It has been forcefully contended on Mouza Kot Jangu, Tehsil Sadiqabad. The suit was contested as defendants had filed written statement controverting the material facts entered in the plaint.
Issues were framed and plaintiff had led his evidence. Upon defendant's turn, an application was filed by defendants/respondents that marginal witnesses of agreement to sell (Exh.D.1) upon which Mutation No,472 was sanctioned on 26-11-1974 in favour of Khushi Muhammad, be appointed as Referees for the case and the suit be decided upon their statements. The Court issued notices to them, who refused to make any statement as Referee. Evidence of the plaintiff was closed on 20-4- 1990. After that an application was moved by the above noted defendants/ respondents for comparison of signatures of Muhammad Yousaf and Muhammad Shafi, attesting witnesses, and of Fateh Muhammad, plaintiff. Application was disallowed by learned Civil Judge on 9-9-1990 against which civil revision was filed by defendants/respondents before learned Additional District Judge, who by accepting the civil revision dated 18-7-1992 directed the learned trial Court to obtain the specimen signatures/thumb-impressions of executants as well as of the attesting witnesses and get it compared from Handwriting Expert. Learned trial Court in compliance of that order passed on 18-7-1992, by learned Additional District Judge, issued a notice to all these persons for their appearance in the Court but they did not turn up. Learned trial Court was thereafter compelled to issue bailable warrants against all these persons for 20-4-1993. Aggrieved from those orders dated 6-4-1993 for issuance of bailable warrants and 18-4-1992 for acceptance of application for comparison of signatures/thumb-impressions passed by learned Additional District Judge, this writ petition has been filed.
3. Learned counsel for the petitioner submits that learned trial Court was not empowered to issue bailable warrants of the marginal witnesses of the document of Exh.D.1 (the disputed agreement to sell) under sub-Article (2) of Article 84 of the Qanun-e-Shahadat, 1984 as the Court was not authorized or conferred with such power by the aforesaid Order. As per learned counsel, the Court may direct any person who is present in Court to write any words and figures for the purpose of comparison but cannot compel marginal witnesses and plaintiff to appear to get their thumb- impressions or their signatures for comparison.
4. On the other hand, learned counsel for the respondents submits that learned trial Court had issued bailable warrants as the aforesaid marginal witnesses had not appeared and this power was granted and available to the aforesaid learned trial Court under section 32 of the C.P.C. As the marginal witnesses had refused to enter into witness-box to give the evidence, therefore, this procedure was adopted. This writ is also not maintainable against order, dated 18-7-1992 which was passed by learned Additional District Judge because it was challenged after the passing of 9 months. No explanation as to the delay in filing of the writ petition has been given by the petitioner.
He has referred to Muhammad Saeed v. Seerat-ul-Fatima and others PLD 1978 Lah.
1459.
5. After considering the arguments of learned counsel for the parties and from the perusal of record, it appears that Sub-Article (2) of Article 84 of the Qanun-e-Shahadat Order, 1984 has empowered the Court to direct any person present in the Court to write any words and figures for the purpose of enabling the Court to compare the words or figures so written with the disputed words/figures. From the above noted provision, I find that the Court has got the power to examine/compare itself or to get the document compared from any expert, and for that purpose, it can direct any person to write any words or figures. The Court can also issue notice/summons to the marginal witnesses for their presence for comparison of their signatures/thumb-impressions.
The power to summon the witness is not only inherent but is also allowed by Order XVI of the C.P.C.
To a Civil Court. If a Court is not considered to have been invested with this power, then no party can summon for any purpose in the Court any person. Summoning of parties/witnesses through the process, provided is the basic power upon which the whole fabric of the trial of the suit is dependant. In case such power is not presumed to lie with the Court, the whole actions of the Court would become farcical. Therefore, the interpretation being put to the Article is devoid of any force. If a witness does not appear in spite of his service or refuses to appear in the Court, learned trial Court has got enough power to compel his attendance through modes prescribed by the Code.
Section 32 of the C.P.C. Has empowered the Court to cause the attendance of any person in his Court to obtain his signatures for the purpose of comparison. Trial Court cannot issue notice but can also attach salary or property of such disobedient person who refuses to appear and can impose fine also. There is yet another provision of section 94 of the C.P.C. Which has granted powers to the Court to pass any other interlocutory order when it considers just and convenient in a case in a given situation, particularly where law has not provided any of its solution. The Court, which is seized of the case, has to act for the smooth running and trial of a case for its conclusion.
There is no prohibition to the Court, to pass such an order. Therefore, I do not see any reason to interfere into this order. So, the writ petition is dismissed with no order as to costs.