' MUZAFFAR ALI, J.--- This revision petition assails, order, dated 18-3-2002, passed by learned Civil Judge, Gilgit and the order, dated 27-8-2002, passed by the learned District Judge, Gilgit.
2. The history sheet of the controversy between the parties revealed from the record of the case, briefly, is that the parties to the suit, initially faced by outcomes of a murder case, wherein respondent No,1 was facing Sessions trial for murder of the wife of the petitioner. Since, parties are relatives to each other as such, they entered into a compromise through an arbitration of the well- known Ulmas of the community named as (i) Moulana Nisar Ahmad Khateeb Central Mosque (ii)
Mufti Abdul Bari (iii) Moulana Qari Syed Ghulam Mustafa, result upon, respondent No,1 was acquitted from the murder case by the Sessions Judge, Gilgit.
3. The present petitioner claims, that in the award, the above named Arbitrators have imposed a condition on the respondents, that the respondents would shift their residence out of the bounded distance, as mentioned in the said award, but the respondents deviated from the same condition, hence the present petitioner filed the suit against the respondents upon the document (award).
4. The suit was contested by the respondents and when the proceedings reached at the stage of calling the above Arbitrators into the witness-box as witnesses, the present petitioner did not meet the requirements of the proviso to Order XVI, rule 1 of C.P.C., as such, he took the responsibility to produce the same Arbitrators before the Court. The petitioner/plaintiff got various adjournments in this regard, but failed to produce the Arbitrators before the Court, lastly the present petitioner submitted an application before the trial Court with the prayer to call the witnesses through Court by issuing the legal process and also requested deposition of the expenses of the witnesses before the Court with the reason that the witnesses had refused to attend the Court on his request unless they are called by the Court.
5. The learned trial Court refused, the application on 18-3-2002, "without hearing the parties on the application". The order was impugned before the learned District Judge, Gilgit by the petitioner/plaintiff through a revision petition, but the learned District Judge also refused to accept the request and dismissed the revision petition through his impugned order, hence this revision petition before this Court against both the impugned orders.
6. We heard the learned counsel for the petitioner and learned counsel for the respondents. The learned counsel for the respondents raised a preliminary objection, before going into the merits of the case, that is, the maintainability of this revision, before this Court, with the contention, that the petitioner has exhausted the remedy of revision before the Court of District Judge, Gilgit, and no second revision petition before this Court is competent, under law, as the revisional jurisdiction of both the Courts is concurrent, and also urged, that the revision could not even be converted into writ petition. In this regard, he relied on following case-law, (i) 1992 CLC page 232 (Lahore), (ii) PLD 1982 Lah. Page 690, (iii) 1988 CLC page 387 (Lahore), (iv) 1986 CLC page 1813 (Lahore), (v) 1983 CLC page 2098 (Karachi).
7. At the other end the learned counsel for the petitioner frankly conceded, that the revision is not competent, but he urged, that it could be treated as writ petition. He relied in this regard on the following case-laws: (a) 1991 SCMR page 1135, (b) 1970 SCMR 1970 page 44(c), PLD 1972 Lah. Page 187.
8. We have gone through the above case-laws cited by both the learned counsel for the parties in pro and contra, to determine first the point of competency of this revision petition and if it is not competent, then could it be converted into writ petition, obviously, there cannot be a second legal opinion on the point, that this revision petition is not competent before this Court for the reason, that the learned District Judge has concurrent jurisdiction with this Court under section 115, C.P.C. To entertain revision petition, subject to the pecuniary jurisdiction of the District Court. The present petitioner has already exhausted revisional jurisdiction of the District Court, Gilgit, hence the second revision is not entertainable before this Court.
9. In such a above legal situation, the only way out is to convert the same revision into writ petition and that is too, when we come to the conclusion that this Court has discretionary jurisdiction to convert the revision petition into writ. So we minutely studied the case-law in this regard. No doubt, the higher judiciary in Pakistan has divergent views on the point, but keeping in view, the important legal and technical issue involved in the present case, we have followed the positive view taken in this regard by the Supreme Court as well as the High Courts in the cases placed before us; (i) 1991 SCMR page 1135 (ii) 1994 SCMR page 771; (iii) CLCN 1991 page 101, (iv) P 1979 N 45 (v) PLD 1978 Lah.
723 (vi) PLD 1982 SC 234, (vii) P 1972 Lah. 187, hence this revision petition is converted into writ and entertained.
10. On the merits of the case, the learned counsel for the petitioner raised the points that:--
(a) The learned trial Court has refused, the application under Order XVI, rule 1, C.P.C. Unheard and arbitrarily, hence the impugned order passed by the learned Civil Judge is liable to be set aside, but the learned District Judge has ignored this legal infirmity on the face of the impugned order, as such the impugned order passed by the learned District Judge too is also liable to be set aside.
(b) That it is true, that the petitioner has taken responsibility to produce the witness before the Court with the bona fide intention and hope, that since the witnesses had caused the murder case to be patched up between the parties and had given their verdict, wherein they laid down, the condition, upon which the suit is filed, as such they would not refuse to attend the Court at his request, but for a sudden surprise of the petitioner, the witnesses refused to attend the Court on the motion or request of the petitioner unless called by the Court through process. The learned counsel relied upon the case-law 1994 MLD page 779 (Azad J&K).
11. The learned counsel for the respondent rebutted the points raised by the learned counsel for the petitioner and urged that:--
(a) The petitioner has voluntarily undertaken to produce his witnesses without resort to Order XVI, rule 1, C.P.C. As such the application under Order XVI, rule 1 has very rightly been refused by both the lower Courts and neither a material irregularity has been committed by them nor they have failed to exercise a jurisdiction vested in them or exercised a jurisdiction not vested with them.
12. That the application under Order XVI, rule 1 was barred by the proviso to Order XVI, rule 1, C.P.C., for the reason that, the petitioner under the proviso was bound to make the application not later than fourteen days prior to the first date fixed for the hearing of the suit. The petitioner has submitted the application after getting several adjournments to produce the witness through his own sources, hence the application could not be entertained, therefore, both the impugned orders have no legal and material infirmity, which calls the writ jurisdiction of this Court to interfere with.
He relied on the case-law as has been cited in para. 6 of this judgment.
13. We have minutely gone through the case-law cited by both the learned counsel for the parties and also the case-law which is in our knowledge and reach on the above points and stepped into the conclusion that an application under Order XVI, rule 1, C.P.C. Submitted before the Court, at a belated stage may be refused, if it apparently seems to be mala fide, frivolous or vexatious and no good cause has been given in it, otherwise the application, may be granted even, if initially, the petitioner has undertaken to produce the witnesses at his own. The guidelines we collected from the case-law laid down by the august Supreme Court and High Courts may be summed as that:
(a) It is primarily, the duty of the Court to procure the attendance of a witness, who refuses to attend the Court and summons cannot be refused on the mere ground of applying late or the party has taken responsibility to produce the witnesses before the Court, unless the application is on the face of it frivolous, vexatious or mala fide. (b) Law favours adjudication on merits and party should not be deprived of its right to examine a witness, because of procedural technicalities unless mala fide is established. The Court should also see the nature of evidence sought to be called, while deciding the application (i) PLD 1972 SC 45 (ii) 1980 SCMR p.557 (iii) 1994 CLC p.1920
(iv) 1994 MLD p.779.
14. Keeping in view the above guidelines, now we discuss the merits of the case in hand as, that the petitioner has filed the suit upon the document which is a verdict of the witnesses named in the application in question and in the list of witnesses submitted by the petitioner, the petitioner has initially taken responsibility to produce, the said witnesses, and after getting several adjournments, in this regard, has moved the application to issue summons by the Court to the witnesses, with the contention that, the "witnesses had refused him to attend the Court at his instance". Obviously the witnesses are well-known Ulnas, having very high religious status in society and it seems impossible for the petitioner to force them to attend the Court, unless they themselves are willing to attend the Court. The petitioner cannot prove his claim otherwise, without being the witnesses examined by calling them into the Court, as the entire claim of the petitioner depends upon the testimony of them, hence the case shown by the petitioner in the application seems to be a good cause and the petitioner seems to be helpless in procuring the attendance of the witnesses by his own means, therefore, the application is neither vexatious nor mala fide in the circumstances. The impugned order passed by the learned Civil Judge is unheard, and sketchy one hence without legal authority. The learned District Judge has failed to point out the legal infirmity of the order passed by the learned Civil Judge by exercising his revisional jurisdiction, hence, both the impugned orders are not tenable in the eyes of law.
' The upshot of the above discussion is that both the impugned orders of the lower Courts are set aside and the case is remanded to the trial Court, with the direction, that the trial Court to issue summons to the witnesses of the petitioner, named in the application, by resorting to legal process as contained under Order XVI, C.P.C. Or their evidence may be procured through Commission as the witnesses are having a high religious status. No order as to costs. File be consigned to record.