MIRZA VIQAS RAUF, J. The instant petition is directed against the judgment dated 02.05.2012 passed by the learned District Judge, Hafizabad whereby the revision petition file by the petitioner against the orders dated 18.02.2012 and 22.02.2012 passed by learned Civil Judge, Hafizabad was dismissed.
2. Precisely, the facts necessary for the adjudication of instant petition are that the petitioner filed an application under Section 17 of The Arbitration Act, 1940 before the learned Senior Civil Judge, Hafizabad for making the award dated 17.04.2005 as Rule of Court. During the proceedings, respondent Nos.3 to 7 filed an application for setting aside the said award before the learned trial Court. An application was also filed by the petitioner for summoning of witnesses namely Ghulam Muhammad son of Noor Muhammad, Ahmad Khan son of Jalal, Muhammad Sharif son of Muhammad Din, Habib Ullah son of Muhammad Sharif and Mushtaq Ahmad Stamp Vendor. The said application was allowed by the learned trial Court and the petitioner also deposited the process fee.
3. On 23.09.2011, the learned trial Court while exercising its power under Order XVII Rule 3 of The Code of Civil Procedure, 1908 dismissed the application of the petitioner for making the award Rule of Court and the application filed by the respondent No.3, Muhammad Anwar for setting aside the award was separated. The petitioner then assailed the order on 23.09.2011 by filing the appeal before the learned District Judge, Hafizabad. The appeal was allowed vide judgment dated 11.02.2012 and the petitioner was directed to produce his complete evidence on his own responsibility on 18.02.2012 before the learned trial Court subject to payment of Rs.5,000/- as cost.
Respondents were also directed to produce their counsel on the said date and complete the cross-examination. The learned trial Court was directed to record evidence of the petitioner and dispose of the case in accordance with law.
4. On 18.02.2012, the petitioner alongwith his witnesses attended the Court however the case was adjourned to 22.02.2012 due to strike of lawyers. While adjourning the case, the learned trial Court passed a direction that petitioner shall also bring the summoned witnesses for the next date. On 22.02.2012 the statements of three witnesses namely Muhammad Aslam and Mushtaq Ahmad Stamp Vendor including the petitioner were recorded whereas summoned witnesses were not in attendance. The learned trial Court after recording the statements of these witnesses closed the evidence of the petitioner and fixed the case for the evidence of respondents for 28.02.2012. The petitioner feeling aggrieved of the said order filed revision petition before the learned District Judge, Hafizabad but the same was dismissed vide judgment dated 02.05.2012 which is now impugned before this Court.
5. Learned counsel for the petitioner submitted that the impugned judgment passed by the learned lower appellate Court is not tenable under the law and even the orders passed by the learned trial Court are violative of Order XVI of The Code of Civil Procedure, 1908. He maintained that when once the learned trial Court has allowed the application for summoning of witnesses then it was the boundan duty of the learned trial Court to adopt all possible measures for procuring their attendance. Learned counsel further submitted that the learned trial Court while shifting the responsibility of producing the summoned witnesses upon the petitioner has committed an error and the learned lower appellate Court also failed to exercise its revisional jurisdiction. In support of his contentions learned counsel for the petitioner has relied upon the cases of "Mst. Bashir Bibi versus Aminuddin and 9 others" (PLD 1973 Supreme Court 45), "Muhammad Younas versus Pirzada M.A. Qureshi and others"(1993 MLD 336), "Abdul Ghani and 2 others versus Abdul Aziz Khan and 2 others" (1992 CLC 212) "Qutab-ud-Din versus Gulzar and 2 others"(PLD 1991 Supreme Court 1109).
6. Conversely, learned counsel for the respondents submitted that in view of the judgment dated 11.02.2012, the petitioner was bound to produce all of his witnesses for the date fixed. He submitted that since the petitioner has not challenged the said judgment so he is estopped by his words and conduct. Learned counsel argued that the revision petition filed before the learned lower appellate Court was rightly dismissed and there is no illegality in the said order.
7. I have heard the learned counsel for the parties and also perused the record with their assistance.
8. The petitioner filed an application before the learned Senior Civil Judge, Hafizabad in terms of Section 17 of The Arbitration Act, 1940 for making the award as Rule of Court. During proceedings, an application was moved by the petitioner for summoning of witnesses on 01.03.2007 which was allowed vide order dated 02.03.2007 and in pursuance thereof, the petitioner also deposited the expenses. On failure of the petitioner to produce his evidence, the learned trial Court while exercising its powers under Order XVII Rule 3 of The Code of Civil Procedure, 1908 rejected the application of the petitioner for making the award as Rule of Court vide order dated 23.09.2011 and by the same order, petition filed by respondent No.3 for cancellation of award was separated. The petitioner assailed the order dated 23.09.2011 by filing an appeal before the learned District Judge, Hafizabad and the said appeal was allowed vide judgment dated 11.02.2012 in the following manner: "28. Law favours adjudication on merits rather than valuable rights of the parties be defeated due to mere technicalities. The conduct of Respondents has also been contumacious in grant of adjournments and has also contributed to delay the conclusion of the Trial. Reliance is placed on PLD 2011 (Lahore)
156. However, in the interest of justice, this Appeal is accepted and the impugned order dated 23.09.2011 is set aside and the Appellant is directed to produce his complete evidence on his own responsibility on 18.02.2012 before the Trial Court, subject to payment of Rs.5,000/- (Rupees five thousands only) as costs. The Respondents are also directed to produce their counsel on the said date and complete the cross examination. The Trial Court is directed to record the evidence of the Appellant and dispose of the case in accordance with law. No other opportunity for producing evidence shall be provided to the Appellant...."
After passing of the above said order, the petitioner alongwith his witnesses namely Ghulam Sarwar, Muhammad Aslam and Mushtaq Ahmad Stamp Vendor appeared before the learned trial Court on 18.02.2012 but due to strike of the lawyers, the case could not be completed. While adjourning the case for 22.02.2012, the learned trial Court passed a direction that the petitioner is also bound to produce the summoned witnesses for the said date. On 22.02.2012 statements of three witnesses on behalf of the petitioner were recorded and since the summoned witnesses were not in attendance so, the case was adjourned for 28.02.2012 for recording of evidence of the respondents. The petitioner feeling aggrieved of the said order filed a revision petition before the learned District Judge, Hafizabad but the same was also dismissed vide impugned judgment dated 02.05.2012.
9. Order XVI of The Code of Civil Procedure, 1908 deals with the summoning and attendance of the witnesses. Rule 1 of the Order contemplates that the parties shall present in the Court a certificate of readiness to produce the evidence alongwith list of witnesses proposed to call or produce either to give evidence or to produce documents within seven days from the settlement of the issues and no party shall be permitted to call or produce witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list. In terms of sub Rule 3 of Rule 1 of said Order, a party may obtain summons for persons whose attendance is required in the Court by moving an application to the Court. Rule 2 of said Order deals with the deposit of expenses of witnesses in the Court whose attendance is required for the said purpose. Rule 10 of the Order provides the procedure for the Court to proceed in the matter where witnesses fail to comply with the summons and Rule 12 of the Order stipulates the consequences of non-appearance of the witness to whom the summon was issued. The petitioner duly invoked the powers ordained in Order XVI of The Code of Civil Procedure, 1908 by moving an application to this effect which was even allowed by the learned trial Court and the expenses were also deposited by the petitioner. In such circumstances, the Court was bound to move its own coercive machinery as provided under the said provision of law for procuring the attendance of the witnesses named in the list. The learned trial Court cannot shift its responsibility towards the petitioner thus the order dated 18.02.2012 whereby the petitioner was directed to produce the summoned witnesses was totally in derogation of the mandatory provision of law. The learned revisional Court while dismissing the revision petition has failed to exercise the lawful jurisdiction. Guidance in this respect can be taken from the case of "Mst. Bashir Bibi versus Aminuddin and 9 others" (PLD 1973 Supreme Court 45). The relevant extract from the same is reproduced below:- "Leave was granted to the appellant by this Court to consider whether there was any sanction in law for the direction, such as has been given by the trial Court and affirmed by the learned Single Judge of the High Court, putting the responsibility on a party to produce its evidence in a case, failing which its evidence is to be shut out. Order XVI of the Code of Civil Procedure deals with summoning and attendance of witnesses. Rule 1 of this Order 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 persons 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 summons, for their attendance. Rule 10 of this Order lays down 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 other 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, 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, nor exceeding the cost of attachment, and of any fine which may be imposed, which is Rs.500 in the maximum, as laid down in rule 12 of the same Order. It would appear from the provisions of law cited above that the Court 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.
We have not been able to discover any provision in the Code of Civil Procedure whereunder the responsibility can be put on a party to produce its evidence on pain of losing 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. The Court may, in the exercise of its inherent powers to prevent abuse of process of the Court, decline to accede to such a request where it is found that the party is deliberately seeking to prolong the case to the grave disadvantage of the other side, and that the evidence sought to be adduced has no material bearing on the decision of the case."
Reliance can also be placed to the case of "Muhammad Anwar and others versus Mst. Ilyas Begum and others" (PLD 2013 Supreme Court 255) and "Hakim Habibul Haq versus Aziz Gul and others"
(2013 SCMR 200), where the same principles have been reiterated by the Hon'ble Supreme Court of Pakistan.
10. In the light of the principles laid down in the judgments supra, this Court is of the considered view that the learned lower appellant Court, while exercising its revisional jurisdiction has failed to rectify the legal error committed by the learned trial Court in exercise of the jurisdiction vested under Section 115 of The Code of Civil Procedure, 1908. The impugned judgment as well as orders passed by both learned Courts below cannot sustain under the law.
11. For the aforementioned reasons, the instant petition is allowed and the impugned judgment dated 02.05.2012 as well as the orders dated 18.02.2012 and 22.02.2012 passed by both the learned Courts below are set-aside with the direction to the learned trial Court to adopt all possible measures for procuring the attendance of summoned witnesses as mentioned in the application filed by the petitioner.