' MIAN SAQIB NISAR, J.---Petitioner is the plaintiff of a suit for specific performance filed by him against the respondent, through which he seeks (sought) the enforcement of an agreement to sell dated 20-61998, the execution whereof has been denied by the respondent in his defence, and accordingly an issue has been framed, by virtue whereof it is the burden of the petitioner to prove the said document. Petitioner in this context examined certain witnesses including one Muhammad Yasin as P.W.5, who in his examination-in-chief has deposed about some inchoate sale deed which was brought on the record by the petitioner as mark-A, however, no question was put to the said witness in the examination-in-chief about the (his) scribing, the execution and the attestation of the noted agreement to sell by him (or in his presence). The respondent cross-examined the witness (P.W.5) and accordingly his statement got concluded on 22-3-2003. Petitioner thereafter on 26-6-2003 moved an application under Order XVIII, Rule 17, C.P.C. Read with section 151, seeking indulgence of the Court for the re-summoning of the witness (P.W.5) on the pretext and stating in the application, that complete statement of P. W.5 could not be recorded, because the counsel for the petitioner was busy and due to rush of work, omitted to get the, agreement to sell proved through the said witness, which otherwise was attested by him as a marginal witness thereof. This application has been dismissed by the trial court vide order dated 21-10-2003, which order has been upheld in revision when challenged by the petitioner. And the constitution petition filed by the petitioner before the learned High Court assailing these two orders could also not succeed, which was dismissed through the judgment in question. Hence this petition.
2. Learned counsel for the petitioner by relying upon the judgments Rakhmat Jan v. Gul-e-Nargis and 6 others (PLD 1989 Lah 506) and Zar Wali Shah v. Yousaf Ali Shah and 9 others (1992 SCMR 1778) has argued that technicalities of law should not be allowed to impede the interest of justice; the Court has the jurisdiction to re-summon and reexamine witnesses at any stage of the proceedings and that the negligence of a counsel should not cause prejudice to the cause of the petitioner, as the proof of the agreement to sell was vital for the petitioner's case and it was duly attested by P.W.5 as a marginal witness thereof.
3. Heard. There can hardly be two opinions that in the process of administration of justice, the litigants should not be knocked out on technical grounds. In this regard reference can be made inter alia to the A law laid down in the judgment reported as Imtiaz Ahmed v. Ghulam Ali and others (PLD 1963 SC 382) in which Mr. Justice B.Z. Kaikaus while dissenting with the majority about the fate of the case opined as under:-- "I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy (emphasis supplied). The English system of administration of justice on which our own is based may be to certain extent technical but we are not to take from that system its defects. Any system, which by giving effect to the form and not to the substance defeats substantive rights, is defective to that extent. The ideal must always be a system that gives to every person what is his."
' In Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678), it was held as below:- "The proposition could hardly be disputed that the principal object behind all legal formalities into safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive. Society to justice in accordance with law of modern society and the conflict between equity and law in judicial history. It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fide. Over a period of time this development of codes and rules led to the evolution of what is called "jurisprudence of Conception" a system of logical deduction from fixed premises. In order to avoid the rigidity and hardship of ultra formalism recourse is had to principle of equitable application and interpretation of legal precepts and conferment of judicial discretion on the Courts as envisaged by Order XLI, Rule 33 of the C.P.C. In regard to Constitutional power of this Court to do complete justice in all matters. These two provisions read together lead to the irreparable conclusion that mere technicalities unless offering an insurmountable hurdle should not he allowed to defeat the ends of justice."
' In order to aptly comprehend the principle of law laid down in the precedent case-law on the subject (including the above two dicta, and even those cited by the petitioner's counsel), we find expedient that some reference to the facts of the two cases (quoted above) should be made. In Imtiaz Ahmed's case (supra), the dispute inter se the parties was about the oath given to the Members of Union Council which was being presided over by Sub-Divisional Officer, Canals and because of the misdescription of Ghulam Ali's (respondent in this case) parentage, he was not given the oath, while the 'other Members after the oath elected Imtiaz Ali as the Chairman of the Union Council, though Ghulam Ali intended to contest the election for the Chairmanship. Being aggrieved of the above action on the part of the Presiding Officer, he successfully challenged the same in the constitutional jurisdiction of the learned High Court, which matter when ultimately, came before the Supreme Court, the appeal of Imtiaz Ali (respondent in writ petition) was accepted and by Majority decision of this Court, while setting aside of the order of the learned High Court, the order of the Presiding Officer was upheld. Justice B.Z. Kaikaus who happens to be in minority, while construing the action of the Presiding Officer as being purely technical in nature, came to the conclusion and formed the opinion, which has been reproduced. However the provision of Civil Procedure Code (C.P.C.) or any other procedural enactment(s), which is/are meant for the trial and the adjudication of a civil or criminal dispute, especially a civil lis between two contesting parties was neither an issue nor a moot point in Imtiaz Ali's case (supra). In the case of Manager, Jammu and Kashmir State Property (supra), the appeal was dismissed for non- prosecution. The restoration application filed by the appellant of that case could not succeed and the appellant lost uptil the learned High Court and it is in this background that when the matter came before this Court, the Court opined as quoted above (reproduced portion).
However, the ratio of both these judgments is not that the procedural law should not be followed in letter and spirit at all or the entire procedural part of the raw is technical in nature and should be overlooked. Rather at the most it has been held that the technicalities should be avoided but with a clear rider "unless it be essential to comply with them on the grounds of Public Policy (emphasis supplied)". In many judgments of this Court to follow, more or less same principle has been reiterated on the basis of the facts akin to or close to those entailed in the above two verdicts.
Therefore certain questions which immediately arise for the consideration are:- what is the procedural law; whether the whole of Civil Procedure Code is procedural law, and thus merely technical in the ordinary and generic sense of the word expression "technical", therefore, even if the provisions of C.P.C. Are not followed in letter and spirit, it shall make no difference on account of the above principle of "technicality"; whether a litigant who is grossly delinquent to follow and adhere to an ostensible procedural provision of law, which in substance is the substantive part of the law otherwise, shall be entitled to make up his delinquency and inadequacy at any point of time, as a matter of right, routine or matter of course without even providing a valid, logical and legal justification in this behalf. In the context of above propositions, it may be mentioned, that though some time it is onerous to draw a distinction between the procedural and the substantive provisions of law, (particularly) when both are contained in one statute, yet it is not impractical to ascertain the clear distinction, if the concept of the two branches of law is vigilantly adhered to and kept in mind. In regard to the difference of the two laws, guidance can be attained from Salmond's Jurisprudence 12th Edition page 128 where it is elucidated that, 'the law of procedure may be defined as that branch of the law which governs the process of litigation..All the residue is substantive law and relates not to the process of litigation, but to its purpose and subject matter (emphasis supplied)". This definition has been duly acknowledged and applied in the judgment of this Court reported as Aftabuddin Qurest and another v. Mst. Rachel Joseph and another (PLD 2001 SC 482).
4. Thus applying the above test, the procedural part of the C.P.C. Is that portion (provisions) which is/are meant for the process of the litigation i,e, the mechanism how to proceed with the trial of the case; a series of actions or the steps to be- taken by the Court and the litigant in order- to achieve the conclusion- of the matter; or in other words the various steps which are expedient for the purposes of proceeding with the trial of a case at its different stages so as to reach to its final outcome (conclusion of the trial). It may also be relevant to mention here that in the developed judicial system of the present times, even the procedural law has immense significance and the true purpose and the object of such law, is not merely a technical aspect of the law which should be reckoned as a mere formality, rather the procedural law is meant to cause uniformity, discipline, parity and systemization in conducting the trial of the case, in the absence whereof, it shall not be possible for the courts of law to adjudicate the matter in accordance with law and to do justice according to law which is the mandate of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. Rather the process of litigation shall be made to suffer by the whim, fancy and arbitrariness of the adjudicator (Courts) and there shall be no description for the parties to the lis to follow and adhere to. It may be also be relevant to specify here that it is bounden duty of the Courts and also the litigants to follow the procedure prescribed by law in letter and spirit, as the failure to do so shall result in indiscipline, and disarrayed in proceeding with the trial of a case (both criminal or civil) and this is against the very purpose of the procedural law. There may, however, be certain provisions which are merely of trivial nature and it might be held (said) that the failure of a litigant or the Court as the case may be to follow such provisions, where no serious prejudice is likely to be caused to the opposite side, that the principle of law enunciated in Imtiaz Ahmed's case (supra) should be followed. But if on the other hand, certain provisions which are of vital procedural significance, and if those are not followed in letter and spirit, there shall be wee possibility of a conclusive trial of a civil case and the process might suffer on account of the unbridled exercise of discretionary empowerment of the Courts, which could stall the fair trial of the matter and this shall be against the very purpose and object of the law (especially the procedural law). Therefore, the adherence to such provisions in letter and spirit and the mandate of the law to be followed can hardly be termed as mere 'technicalities' on account of which it might ultimately be held that no one should be knocked out for such technical reasons. Thus, in view of the afore- stated importance and the concept of the procedural law it may be mentioned that excluding the portion of C.P.C. Which purely deals with the process of the litigation the remaining part of the C.P.C., shall fall within the category of substantive law. In this category, inter alia, the right to give evidence and the right to cross-examine of the witness strictly in terms of C.P.C. Read with the relevant provisions of Qanun-e-Shahadat Order, 1984 unmistakably is the part thereof (of the substantive law).
5. Be that as it may, in my view the provision of Order XVIII, Rule 17 C.P.C. Is one of the important stipulation in the Civil Procedure Code and cannot be termed as simply procedural in nature and thus a mere technicality, thus for the purposes of analyzing the said rule, in general and also in the context of instant case, I find expedient to reproduce the same which reads as below:-- "17. Court may recall and examine witness. ---The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit."
' From the clear language of the above, and the precedent case law on the subject, the Court has the due empowerment and the jurisdiction to call any witness at any stage of the suit, on its own motion and even upon an application of either of the parties. But the question is as to what circumstances shall warrant for the exercise of the said power and/or whether a party to the litigation has an absolute right, or as a matter of course can require the Court to invoke its power and call a witness for the re-examination at any point of time and the stage of the proceeding, because it shall be a mere technicality to do so? The answer to the above is in the negative (emphasis supplied). In our view the litigant has no such absolute right at all; the witness also should not be summoned by the court while exercising its discretion as a matter of routine, rather it all dependents upon the facts of each case, as to when and why the Court should exercise its discretion in this behalf for which the court has to provide judicial reasons; and in this context some light has been thrown in the judgment reported as Messrs Ilyas Marine and Associates Ltd. v.
Muhammad Amin Lasania and another (1997 CLC 763), in which it has been held as under:-- "The Court has the discretion to recall any witness who has already been examined, and put necessary questions to him. This power of recalling the witness can be exercised suo motu by Court or on application moved by any party in the suit, but, this discretion has to be exercised judiciously looking to the circumstances of each case and not to fill the lacuna in the evidence of any party in the suit. The party making such application has to advance reasonable and convincing grounds for recalling the witness and after the Court is satisfied that it was necessary for proper adjudication of the suit then only this discretion is to be exercised... .... ... ...The learned Advocate for defendant has relied on case reported in AIR 1947 Bombay 156 where it has been held that discretionary powers of the Court under Order 18, Rule 17, C.P.C. Are to be exercised in exceptional circumstances. In the instant case there is no exceptional circumstances in favour of the plaintiff to allow the application. He has cross-examined the witness at his own insistence in preference of his Advocate. He has been frequently changing the Advocates and one of the document which he wanted to confront with the witness was not allowed to be exhibited by the Court and non-confronting of other documents is due to his own negligence, or it may be that at the time of cross-examination he did not feel it necessary to do so; and now it may be a afterthought. The Court can never be a party to fill lacunae in evidence of any side."
' In Madhubhai Amthalal v. Amthalal Nanalal and others (AIR 1947 Bombay 156), it has been held as below:-- "The powers of the Court to act under Order XVIII, R.17 are very wide. Thus, if the Court while considering the judgment finds that there is any ambiguity on the face of the record or an omission which wants clearing up, the Court can in a proper case, recall a witness, who had given evidence, for that purpose. But the power under the rule is discretionary and ought to be exercised with the greatest care and only in the most peculiar circumstances (emphasis supplied). "
' In Vadiraj Naggappa Vernekar (dead) through L.Rs, v. Sharadchandra Prabhakar Gogate (2009) 4 Supreme Court Cases 410), it is held:-- "Civil Procedure Code, 1908---Order.XVIII, R.17---Recall of witness after his examination is completed---Scheme and object---Power to recall witness - Discretion of court -Matters to be considered - Recalling witness to fill up lacunae in evidence discovered on cross-examination- Permissibility--Held, Order XVIII. R.I7 is not intended to be used to fill up omissions in the evidence of a witness who has already been examined - Main purpose of Order XVIII, R. 17 is to enable court to clarify any doubts that may have arisen during the course of his examination---Prejudice is not a ground for exercise of power by court---If evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, trial court may permit recall of such witness for re- examination-inchief with permission to defendants to cross-examine the witness---Appellants seeking to introduce evidence by recalling of witness, which was available at the time of his affidavit was prepared---Neither new evidence sought to be introduced nor new facts discovered subsequently---Only after cross-examination of the witness that certain lapses in his evidence were noticed---Held, in such a case no case made out for recall of the witness."
' In the above context, reference can also be made to K.K.Velusamy v. N.Palanisamy ((2011) 11 Supreme Court Cases 275), it is held:- "Civil Procedure Code, 1908---Order XVIII, R. 17---Nature and scope of power under---Power to recall witness who has been examined under Order XVIII, R.17, held, cannot be exercised for further examination-in-chief or cross-examination of witness or for adducing additional material or evidence, which power was available under Order XVIII, R. 17-A and is now available under S.151--- Power under Order XVIII, R. 17 is only for clarification i,e, to enable court to clarify any issue or doubt it may have in regard to evidence led by parties by recalling any witness so that court itself can put questions to such witness and elicit answers---However, this power under Order XVIII, R. 17 is not intended to be used to fill up omission in evidence of a witness who has already been examined."
From the wording of the noted rule and from the ratio of the judgments quoted above, it is quite obvious that the exercise of discretion by the Court in terms thereof is circumvented with due care and caution; it should be exercised in exceptional circumstances; party requiring the summoning of the witnesses should not be allowed to fill up the lacuna of his case, which has been left due to the negligence and lapse of such party; no new case should be allowed to be set up by the delinquent J party, especially when such evidence was available at the time when the party had the opportunity to lead evidence, and it is not a case of discovery of evidence coming into being or discovered subsequently; the delinquent party have to set out reasonable and convincing grounds for recalling the witness while conducting the examination-in-chief or the cross-examination as the case may be (note: in this case we are deliberately not considering the effect of the expression appearing in the rule "subject to the law of evidence for the time being in force). Anyhow, the true object of re-examination of the witness as a matter of fact and in law, is to clear any obscurity and/or ambiguity which might have arisen during the course of his examination/statement and it should be clarified otherwise obscurity etc. That might lead to injustice and the court shall find difficult to adjudicate the matter to do justice. But it should categorically be held that such provisions (Order XVIII, Rule 17 C.P.C.) is not meant and is not designed for the purposes of enabling a party to fill up the omissions in the evidence of a witness who has already been examined, rather the purpose, the nature and the scope of the power available to the Court under the said rule is to enable the Court to seek clarification on any issue or to have a doubt cleared in the statement of a witness which if left outstanding, it would be difficult for the Court to take a right decision. We do not find that the case set out by the petitioner in his application for re-summoning the witness under Order XVIII, Rule 17 C.P.C. Qualify the aforesaid test and, therefore, the learned courts below have rightly dismissed the said application.
6. In view of the above, this petition has no merit and is accordingly dismissed. Leave refused.