MAMOON RASHID SHEIKH, J.----The instant petition is directed against the order, dated 09.06.2017, passed by the Addl. District Judge, Lahore (respondent No,1), whereby the petitioner's revision petition; against the order, dated 08.03.2017, passed by the Civil Judge, 1st Class, Lahore (respondent No,8), dismissing her application, under Order XVI, rule 1, of the C.P.C., for summoning of witnesses through the process of Court; has been dismissed.
2. Before setting out the facts of the case it may be noted that the petitioner has contended that she has impleaded respondents Nos,4 to 7 as pro forma respondents as she is not seeking any relief against them.
3. The brief facts giving rise to the petition, as ascertained from the record and the arguments of the learned counsel for the parties, are to the effect that the petitioner and respondents Nos, 2, 3 and 5 to 7 are the sons and daughters of one Dr. Muhammad Hafeez Toosy. The said parties have filed three suits against each other in respect of the properties in dispute. The detail of the suits is being given hereunder for ease of reference:-
(i) "Shahid Hafeez Toosy and others v. Tahir Hafeez Toosy and others", suit for declaration, permanent and mandatory injunction and partition;
(ii) "Dr. Tahir Hafeez Toosy v. Shahid Hafeez Toosy and others", suit for restoration of possession with consequential relief, and
(iii) "Dr. Tahir Hafeez Toosy. v. Shahid Hafeez Toosy", suit for declaration with permanent injunction.
Proceedings were primarily held in the suit listed at (i) above. Issues in the said suit were framed on 03.03.2016. Evidence of the parties was being recorded on the said Issues, however, through the order, dated 24.04.2015, all the three suits were consolidated. Subsequently, through the order, dated 13.05.2015, it was directed that since the suit listed at (i) above was filed prior to the other two suits, therefore, proceedings shall be held in the said suit and the parties shall be treated as given in the title of the said suit. Subsequent thereto through the order, dated 09.12.2016, respondent No,8 observed that although through the order, dated 01.10.2015, it was directed that consolidated Issues be framed in all the three suits, yet the consolidated Issues have not been framed. Respondent No,8, therefore, in the interest of justice, proceeded to frame consolidated Issues on 09.12.2016.
Respondent No,8 further directed the parties to file their lists of witnesses as well as certificates of readiness to produce evidence within seven days from the said date. The petitioner and respondents Nos,5 to 7 filed their list(s) of witnesses and reserved their right to lead evidence in rebuttal after conclusion of respondents Nos,2 and 3's evidence on the newly added/consolidated Issues. On 06.01.2017, after respondents Nos,2 and 3 had closed their evidence, the said respondents raised an objection that the petitioner and respondents Nos,5 to 7 have no right to adduce evidence to the extent of the newly added/consolidated Issues. Respondent No,8, however, allowed the petitioner and respondents Nos,5 to 7 to lead evidence in rebuttal through the order, dated 06.01.2017, inter alia on the grounds that the petitioner and respondents Nos,5 to 7 had filed their lists of witnesses within time after framing of the newly added/consolidated Issues.
Subsequent thereto on 30.01.2017, the petitioner filed an application for summoning five (5) witnesses, through process of the Court. The said witnesses were included in the list of witnesses tiled by the petitioner after consolidation of Issues. The detail of the said five (5) witnesses is as under:- "a. Malik Asad, son of Nawab Amir Mohammad Khan, Resident of Ka House, Street 62, F6 Ataturk Road, Islamabad; b. Malik Waheed, Nawab of Kalabagh, son of Malik Muzzaffar, resident of Kalabagh Estate, Kalabagh, near Mianwali; c. Malik Idrees, son of Malik Muzzaffar, Resident of Kalabagh Kalabagh, near Mianwali; d. Sub Registrar Lahore, with record of sale deed No,7378 17/07/1962 e. Director or Representative (C& 1) LDA, Lahore with record"
The petitioner's application was resisted by respondents Nos,2 and 3. The application was dismissed by respondent No,8 through the order, dated 08.03.2017. inter alia on the ground that the petitioner had not mentioned the reason as to why the evidence of the witnesses was relevant to the matter in issue in the suits and what facts were sought to be proved through their evidence. It was further held that the evidence of the official witnesses was not required as the sale deeds in question had been admitted by the parties.
Feeling aggrieved the petitioner filed a revision petition which was dismissed by respondent No,1 through the impugned order, dated 09.06.2017, on the same grounds which found favour with respondent No,8. Respondent No,1 also observed that in case the petitioner wishes to adduce the evidence of the witnesses in question she can do so on her own.
4. The learned counsel for the petitioner submits that respondents Nos,1 and 8 have erred in passing the impugned orders. The petitioner had set forth the reasons for summoning the witnesses in Para-4 of her application. The reasons were to the effect that although all the witnesses are named in the list of witnesses filed by the petitioner after framing of the consolidated Issues, yet the witnesses have refused to attend the Court on the petitioner's behalf. One of the witnesses, namely Malik Asad, has refused to appear on account of his frail physical condition whilst the other witnesses are reluctant to appear as witnesses.
5. Contends that sufficient reason and good cause had been established by the petitioner in her application, however, respondents Nos,1 and 8 failed to appreciate this fact.
6. Further submits that through the order, dated 06.01.2017, respondent No,8 had allowed the petitioner to lead evidence of the witnesses by holding that she was legally entitled to produce her evidence in respect of the (fresh) consolidated Issues framed, on 09.12.2016, as per the list of witnesses submitted by her on 16.12.2016. However, when the petitioner moved the application for summoning of the witnesses through process of the Court, respondent No,8 in contradiction of the order, dated 06.01.2017, declined to allow the petitioner to summon the witnesses through process of the Court by holding that the petitioner had failed to establish the relevance of the evidence of the witnesses. Contends that respondent No,1 compounded this error by stating that the petitioner should produce the witnesses on her own responsibility or under her own initiative.
7. Submits that the impugned order has been passed by illegal exercise of jurisdiction and is in violation of the express provisions and spirit of the law.
Relies on the judgments reported as "Naeem Akhtar v. Additional District Judge and others" (2005 M LD 1713), "Jabal Parekh and 4 others v. Karachi Building Control Authority (K.B.C.A.) through Chief Controller of Buildings (C. C. O. B.), Karachi and 4 others" (2008 CLC 1334), "Ikram Ullah v. Mst.
Farkhanda Habib and 3 others" (2012 CLC 569), "Muhammad Anwar and others v. Mst. Ilyas Begum and others" (PLD 2013 Supreme Court 255), "Khurram All Shah and 2 others v. Bahadar Khan" (2014 YLR 1025) and "Bank of Punjab through Chief Manager v. Messrs Anmol Textile Mills Limited through Chief Executive and 3 others" (2016 CLD 1566).
9. Mr. A ish Bahadur Rana, Advocate, the learned counsel for respondent No,3 after giving the factual background of the petition in a very lucid manner submits that the impugned orders have been passed in accordance with the law as laid down by the Hon'ble Supreme Court in Muhammad Anwar's case (supra). Submits that a party is not entitled to summon witnesses through process of the Court as of right. A party has to establish a sufficient cause for summoning witnesses through process of the Court. The reasons set out by the petitioner in her application do not constitute sufficient cause.
10.Contends that the statement that the evidence of the witnesses is relevant to the petitioner's case can neither be termed as a sufficient nor a good cause. Moreover, a party has to establish the relevance of the evidence of the witnesses sought to be summoned through the Court before it can be allowed to do so. The petitioner failed to establish any of the above noted grounds. Hence. the dismissal of her application and revision petition in accordance with the law.
11. Mr. Sheraz Zaka, Advocate, the learned counsel for respondents Nos,2 and 3, whilst adopting the arguments of the learned counsel for respondent No,3 further submits that the petitioner had failed to establish that the evidence of the Sub Registrar and the official of the LDA was relevant given the fact that the sale deeds in question had been admitted by the parties. Further submits that the petitioner had contended that one of the witnesses (Malik Asad) was unable to attend the Court due to his poor physical condition, however, the petitioner's application was not supported by any medical certificate or proof in respect thereof. Further contends that the petitioner failed to establish the relevance of the evidence to be led by the witnesses sought to be summoned, therefore, the impugned order has been passed in accordance with the law. Relics on Muhammad Anwar's case (supra).
12. Heard. Record perused.
13. It is an admitted position between the parties that evidence was led in the affirmative by the petitioner and respondents Nos,5 to 7 in the suit entitled. "Shahid Hafeez Toosv and others v. Tahir Hafee: and others" (wherein the petitioner has been arrayed as plaintiff No,2), prior to framing of the consolidated Issues on 09.12.2016. It is a further admitted position that the petitioner filed her list of witnesses on 16.12.2016, that is to say, within seven days of the framing of the consolidated Issues.
It is also an admitted position that after consolidation of Issues respondents Nos,2 and 3 led their evidence in affirmative in respect of the newly added/consolidated Issues and the A petitioner as well as respondents Nos,5 to 7 reserved their right to lead evidence in rebuttal after the evidence of respondents Nos,2 and 3 had been completed. In other words the petitioner was yet to lead her evidence in rebuttal after framing of the consolidated Issues when she filed the application for summoning the witnesses in question.
14. As mentioned above, the petitioner sought to summon five (5) witnesses through process of the Court. Out of the five witnesses three witnesses are private witnesses whereas two witnesses are official witnesses. The three private witnesses belong to the family of the late Nawab of Kala Bagh the one time Governor of West Pakistan. The petitioner in Para-4 of her application has mentioned that one of the private witnesses, namely Malik Asad. has declined to attend Court on account of his frail physical condition. The petitioner has. therefore. requested that he may be summoned through process of the Court. In respect of the other witnesses she has maintained that they are reluctant to appear in Court or have refused to appear in Court on her behalf. Respondents Nos,1 and 8 as well as the learned counsel for respondents Nos,2 and 3 have maintained that the reasons set forth in Para-4 of the petitioner's application do not constitute sufficient grounds or a good cause for summoning of the witnesses through process of the Court. The learned counsel for respondents Nos,2 and 3 has gone further to state that no medical evidence/certificate has been filed along with the petitioner's application to establish that the witness named Malik Asad is suffering from poor physical health/condition.
15. I, however, note that the petitioner's application is supported by an affidavit whereas respondents Nos,2 and 3's reply thereto is not supported by a counter affidavit. The mere non-filing of the counter affidavit by respondents Nos,2 and 3 would, therefore, be sufficient to accept the reasons set forth by the petitioner in Para-4 of her application for summoning the witnesses through process of the Court. I am fortified in my view on the basis of the judgment of the Hon'ble Supreme Court reported as "Islamic Republic of Pakistan v. Amjad All Mirza" (PLD 1977 SC 182). The contention of the learned counsel for respondents Nos,2 and 3 is accordingly repelled.
16. It is settled law that for a party to a lis to be successful in leading evidence it has to firstly file its list of witnesses within seven (7) days of the framing of Issues. And in case the party seeks to summon the witnesses named in the list through process of the Court then it has to file the requisite application and to deposit the diyat money/process fee at least fourteen days prior to the date of hearing. Rules 1, 7A and 8 of Order XVI, of the C.P.C., refer. Reliance is also placed on Muhammad Anwar's case's (supra).
17. In the instant case it is an admitted position that the petitioner filed her list of witnesses within the stipulated seven (7) days. It is a further admitted position that the petitioner filed her application for summoning of witnesses before she began to lead her evidence in rebuttal after framing of the consolidated Issues. The petitioner's application would, therefore, appear to have been filed in accordance with the law.
18. It is further settled law that if a party is unable for some reason to procure the attendance of its witnesses then it can have resort to the machinery of the Court for summoning the witnesses provided it moves the application within the stipulated period. Once such an application is moved and allowed and the diet money/process fee is deposited, it is for the Court to summon the witnesses. And in case the witnesses do not appear despite service then it is for the Court to employ its coercive machinery in order to procure the attendance of the witnesses. The Court cannot require the party to procure the attendance of the witnesses on its own recognition or on its own responsibility. The judgments reported as "Mst. Bashir Bibi v. Aminuddin and 9 others" (PLD 1973 Supreme Court 45) and "Saleem-ud-Din and others v. Government of the Punjab" (2009 M LD 635), refer.
19. It may be further noted that on 06.01.2017 after respondents Nos,2 and 3 closed their evidence the said respondents raised an objection vis--vis the petitioner and respondents Nos,5 to 7's right to adduce evidence to the extent of the official witnesses named in their list of witnesses.
Respondent No,8. however, held that since the petitioner and respondents Nos,5 to 7 had only led evidence in respect of the Issues earlier framed, on 03.03.2016. therefore, they are legally entitled to produce their evidence in respect of the newly added/consolidated Issues, which were framed, on 09.12.2016, as per the list of witnesses submitted by them on 16.12.2016.
20. In view of the above I tend to agree with the learned counsel for the petitioner that in presence of the order, dated 06.01.2017, respondent No,1 erred by declining to allow the petitioner to summon the official witnesses through process of the Court. through the subsequent order, dated 08.03.2017.
21. When the facts of the case are examined in the light of the above then one comes to the conclusion that respondent No,1 as well as respondent No,8 erred not only in law but also in facts in refusing to allow the petitioner to summon her witnesses through process of the Court. Respondent No,1 further erred in requiring the petitioner to produce her witnesses on her own recognition or on her own responsibility.
22. Under the circumstances, the petition is allowed in the terms that the impugned orders are set aside and the prayer of the petitioner for summoning the witnesses mentioned in Para 4 of her application, dated 30.01.2017, through process of the Court, is allowed.
There is no order as to costs.