OALANDAR ALI KHAN, J:- The instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed by Aktar Zaman and two others calls in question order dated 09.07.2014 passed by Additional District Judge-III, Haripur, thereby accepting revision petition No.41/CR dated 05.06.2014 by setting aside order dated 31.05.2014 of the learned Civil Judge-VII, Haripur, whereby permission was granted to recall PW-4, Gulzar son of Abdullah Khan, for cross- examination.
2. The facts, as gleaned from the record, briefly stated, are that predecessor of respondents No.1, 2, 3, Mst. Sarwar Jan (Plaintiff No.1) and respondent No.4, Mst. Pervez Akhtar (plaintiff No.2) lodged suit for declaration, wherein they challenged mutation No.2403 attested on 15.10.1988 in respect of the land described in the plaint, inter alia, on the ground of minority of plaintiff No.2 (respondent No.4) at the time of attestation of the mutation. The parties adduced evidence in support of their respective claims, and decree was granted in favour of the plaintiffs/predecessor of respondents No.1, 2, 3 and respondent No.4, but the case was remanded back to the trial Court by this Court with the direction to record decision afresh, after recording evidence of the parties. After remand, statements of RPW-1 and RDW-1 were recorded and when the case was fixed for final arguments, the petitioners/defendants moved application for placing on record 'Nikah Nama' of plaintiff No.1/predecessor of respondents No.1, 2, 3 with Gulzar son of Karam Dad for determination of age of the said plaintiff and her summoning for further cross-examination; but the application was turned down by the learned Civil Judge-VIII, Haripur vide his order dated 10.01.2014. The record would further reveal that before the petitioners/defendants could prefer an appeal, plaintiff No.1/predecessor of respondents No.1, 2, 3 died, creating an unforeseen and a new situation for the petitioners/defendants. Therefore, petitioners/defendants moved a fresh application to the Civil Judge-VII, Haripur for recalling Gulzar Khan son of Abdullah Khan, PW-4, for cross-examination about gift dated 10.02.1962 of a house to Mst. Sarwar Jan, deceased, to determine correct ages of the plaintiffs. The application was allowed by the learned Civil Judge-VII, Haripur vide his order dated 31.05.2014 but the order was reversed by the learned Additional District Judge-III, Haripur vide his order dated 09.07.2014 in the revision petition filed on behalf of the respondents. The order dated 09.07.2014 of the learned Additional District Judge-III, Haripur has been impugned in this writ petition.
3. During arguments, the learned counsel for the petitioners contended that there were mutually conflicting entries with regard to the date of birth of plaintiff No.2/respondent No.4, Mst. Pervez Jan, as the record of the Office of the District Health Officer showed the same as 23.12.56, while record of her National Identity Card from NADRA showed her year of birth as 1943. The learned counsel further contended that determination of the age of plaintiff No.2/respondent No.4 at the time of attestation of impugned mutation was essentially required for proper adjudication of the case. The learned counsel maintained that the gift/dower deed dated 10.02.1962 was neither in the knowledge nor in possession of the petitioners/defendants at the time of recording evidence, which came to their knowledge and possession later on, prompting them to seek its placing on record and recalling Gulzar for cross-examination.
4. The learned counsel for the respondents, on the other hand, argued that it is very strange that the petitioners/defendants are praying for recalling of PW-4 and his cross-examination on a document which has been suddenly and surprisingly produced by them at a very belated stage.
The learned counsel further contended that earlier application of the petitioners/defendants for the same purpose was turned down, which attained finality, as no appeal/revision was lodged against that order.
5. There is no dispute with regard to the fact that age of plaintiff No.2/respondent No.4 requires determination in the face of suit of predecessor of respondents No.1, 2, 3 and respondent No.4, wherein the impugned mutation has also been challenged; inter alia, on the ground of minority of plaintiff No.2/respondent No.4 at the time of attestation of the mutation. It has been alleged by the petitioners/defendants that the deed dated 10.02.1962 came to their knowledge and possession afterwards, when evidence in the case had already been recorded, and there is nothing on record to suggest otherwise. The earlier application of the petitioners/defendants for placing on record the deed in question and recalling plaintiff No.1/predecessor of respondents No.1, 2, 3 for cross- examination was, no doubt, turned down by the learned Civil Judge-VIII, Haripur vide his order dated 10.01.2014 and no appeal/revision was preferred against that order, in view of changed scenario due to death of plaintiff No.1/predecessor of respondents No.1, 2, 3 in the meantime; but events taking place afterwards, beyond the control of petitioners/defendants, per se, should not preclude the petitioners/defendants from pursuing quest for bringing on record evidence necessary for determination of age of plaintiff No.2/respondent No.4, especially so when Order-XVIII Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 arms a Court with ample powers to recall a witness at any stage of a suit.
6. Needless to say that conflicting versions, appearing from record secured from different sources, created ambiguity and obscurity with regard to the age of plaintiff No.2/respondent No.4, and the learned Additional District Judge-III, Haripur was, therefore, wrong to hold that there was no need to recall PW-4 for clearing obscurity and ambiguity. The learned Additional District Judge-III, Haripur also made blatant error when the learned Judge observed that the gift dated 10.02.1962 has neither been mentioned in the written statement of the respondents/ defendants nor petitioners / plaintiffs have referred to the same in their plaint. The learned Additional District Judge-III further held that the document dated 10.02.1962 has not been mentioned by the parties in their respective lists of documents and that the respondents/ defendants have also not sought any permission from the learned lower Court for placing the document on file so that the opposite party should not have taken by surprise. The above observations would indicate that the learned Additional District Judge failed to properly appreciate facts of the case and evidence of the parties, as it is the case of the petitioners/ defendants that the deed in question came to their knowledge and possession later on after even evidence of the parties had been recorded.
7. Above all, order-XVIII Rule 17 read with Section 151 of Code of Civil Procedure, 1908 confers discretionary powers on the Court to recall a witness at any stage of the suit, and this discretion, once exercised, cannot be interfered with in the revisional jurisdiction unless it appears to the revisional Court that the trial Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity, under Section 115 of Code of Civil Procedure. In such a situation, we are left with no other option but to set at naught order of the learned Additional District Judge-III, Haripur dated 09.07.2014 and restore the order of learned Civil Judge-VII, Haripur dated 31.05.2014, in our writ jurisdiction.
8. The writ petition is disposed of accordingly.