RASAAL HASAN SYED, J. This civil revision challenges order dated 07.4.2022 of learned Addl. District Judge, Sargodha whereby order of the learned Civil Judge dated 26.3.2022 was set aside.
2. Petitioner/plaintiff along with Respondents Nos. 9 and 10 instituted a suit for declaration claiming to be owners-in-possession of land measuring 44 kanals and 07 marlas situated at Chak No. 106/Janubi, Tehsil and District Sargodha on the basis of oral gift dated 02.8.2013 by Mst. Moondan, paternal aunt of the petitioner and real sister of the private respondents. The stance in the plaint was that oral gift was accepted and they were in possession and that mutation of oral gift could not be entered due to illness of Mst. Moondan and that on her demise the respondents made efforts for attestation of mutation of inheritance which as per petitioner could not be effected due to the alleged oral gift. Petitioner, accordingly, claimed a declaration of ownership of suit land and perpetual injunction to restrain the respondents from claiming ownership by inheritance or from getting attestation of mutation of inheritance. Suit was resisted only by defendant No. 8 in the suit and respondent No.2 herein, namely, Dost Muhammad while the other respondents were proceeded against ex parte. Issues were framed. Petitioner attempted to produce defendant No. 6 in the suit and respondent No. 7 herein i.e. Mehmood Tariq as P.W.2 whose examination, as a witness from the plaintiff/petitioner was objected to by the respondents but the objection could not sustain vide order dated 26.3.2022 of the learned Civil Judge. Appeal against the said order was allowed by the learned Addl. District Judge vide order dated 07.4.2022, in result, the order of the trial court was set aside by accepting the objection of respondent and production of defendant No. 6, namely, Mehmood Tariq as witness of petitioner/plaintiff was declined.
3. Learned counsel for the -petitioner submits that the Impugned order was untenable; petitioner could summon any person including the defendants as witnesses and having mentioned the name of defendant No. 6 Mehmood Tariq in his list of witnesses the objection as to his appearance as P.W. could not be entertained and that the Trial Court rightly declined the objection while the learned Addl. District Judge incorrectly and unlawfully reversed the order of learned Civil Judge and that the petitioner/plaintiff could not be denied the right to produce the evidence of plaintiffs own choice.
4. Points raised by learned counsel have been given due consideration in the light of the material documents available with this Revision Petition. From the facts noted supra, it is discernible that the petitioner's main stance in the suit was that the paternal aunt of petitioner/plaintiffs had made an oral gift in their favour on 02.8.2013 in the presence of witnesses which was accepted and possession was transferred and that since then the plaintiffs were in possession of the suit property as owners and that the private respondents i.e. defendants Nos. 2 and 8 in the suit, who were the real brothers of the deceased Mst. Moondan Bibi had no right to claim inheritance or to seek attestation of mutation of inheritance of the donor. Defendant No. 8 i.e. respondent No. 2 herein contested the suit, denied the oral gift and claimed that the deceased donor had been living with him till her death and that she was suffering from paralysis and was being attended to only by the said defendant/respondent and that she never made any oral gift nor the petitioner/plaintiff was in possession of the suit property. Other respondents/defendants in the suit were proceeded against ex parte. After framing of issues, petitioner started producing his witnesses and in this exercise an attempt was made to produce defendant No. 6 Mehmood Tariq as P.W.2 which was objected to the objection did not sustain with the learned Civil Judge. In appeal the order of the learned Civil Judge was set aside by learned Addl. District Judge, in result, petitioner was declined production of defendant No. 6 as witness for the plaintiff, which order is now under consideration.
5. Perusal of the order of learned Civil Judge dated 26.3.2022 shows that it was perfunctory which was passed without application of judicial mind, as the objection was declined simply for the reason that respondent could not produce any legal precedent, little realizing that it was the duty of court to decide the points raised before it in accordance with law and this duty could not be declined to be exercised for the reason that proper assistance was wanting. The learned Addl.
District Judge after examining the whole case, observed that defendant No. 6 i.e. respondent No. 7 herein was a rival party against whom the allegations of breach of alleged rights claimed by the petitioner plaintiff were raised in the plaint and that having been arrayed as defendant, he could not possibly be produced as a witness of plaintiff.
6. As a matter of rule the petitioner and his co-plaintiffs who had instituted suit and claimed declaration of ownership on the basis of an alleged oral gift by Mst. Moondan in their favour, are under obligation to prove through admissible evidence that a declaration of oral gift was made. It was accepted and that they are in possession of the suit property on the basis of oral gift. The petitioner was also required to disclose particulars of oral gift viz: the time, date and place of alleged declaration, acceptance, the transfer of possession under oral gift; the name of the persons who witnessed the transaction and in whose presence the oral gift was made, which particulars need to be reflected in detail in the pleadings and thereafter to be proved by production of witnesses. Perusal of the plaint reveals that the petitioner/plaintiffs did not claim presence of defendants Nos. 2 to 8/respondents herein at the time of alleged declaration and acceptance of oral gift or transfer of possession under any oral gift. The plea of oral gift was specifically denied by the respondent No. 2 as defendant No. 8 in the suit, and in these circumstances the petitioner will be expected to produce the evidence of persons who were alleged witnesses of transaction of oral gift. Instead of producing the witnesses of alleged gift, the petitioner opted to produce defendant No. 6 Mehmood Tariq as P.W.2 in evidence which was objected to. Petitioner's stance was that having mentioned the name of defendant No. 6 in the list of witnesses, he could produce him as one of the witnesses. In this context reliance was placed on the case of Sri Awadh Kishore Singh and another v. Sri Brij Bihari Singh and others (AIR 1993 Patna 122) to maintain that there was no provision to show that a party is debarred from examining its adversary as a witness and that the petitioner could legitimately produce defendant No. 6 as a witness in the case. It is correct that C.P.C. does not contain any specific provision that bars the production of adversary by a party as their own witness but at the same time it is also true that there is no provision therein that permits such an exercise. The practice of summoning or producing an adversary as witness by the opposite party, in the ordinary course, has not been approved as it leads to unnecessary embarrassment for the opponent to face the cross- examination of his own counsel or the counsel of his co-defendants having common interest and, thereafter, reappear as a witness in support of their own case. In Pirgonda Hongonda v.
Vishwanath Ganesh and others (AIR 1956 Bombay 251) while referring to the case supra it was observed as under: '(2) ...
Mr. Datar has also relied upon Circular No.161 of the Circulars issued by this Court in the Civil Manual. This circular has invited the attention of the subordinate Judges to the observations of the Privy Council in---'Kishori Lal v. Chunni Lal', 31 All 116 at p.122 (PC)(A). Their Lordships of the Privy Council have referred to the practice which sometimes seemed to obtain in some of the Courts in India of calling the party's opponent as a witness and they have observed that this practice is highly objectionable. 'Such a practice', said their Lordships "Ought never to be permitted in the result to embarrass judicial investigation as it is sometimes allowed to be done". Normally a party to the suit is expected to step into the witness box in support of his own case and if a party does not appear in the witness box it would be open to the trial Court to draw an inference against him.
If a party fails to appear in the witness box, it should normally not be open to his opponent to compel his presence by the issue of a witness summons.
That appears to be the effect of Circular No.161 issued by this Court. Apparently, the attention of the learned Judge has not been drawn to this circular, otherwise he would not have issued the summons as prayed for by the plaintiff. In the result, I set aside the order passed by the learned Judge directing the issue of a witness summons against the defendants in this case."
The view expressed supra appears to reasonable and balanced and with which I also agree.
7. Considering the facts of the instant case it is observed that the petitioner did not claim in the plaint that the respondents/defendants were either witnesses to the alleged oral gift or they had ever acknowledged the same or that they were privy to any instrument in respect of the oral gift or were witnesses therein and, being so, propriety demands that the petitioner and his co-plaintiffs shall in the first instance complete their oral evidence in support of their plea of oral gift and, thereafter, if the court feels that the recording of evidence of any of the defendants who has not entered appearance in the suit as a witness will be necessary or material it will not be denuded of its jurisdiction under Order XVI. Rules 20 and 21, C.P.C. to compel the attendance of such party to record their statement. As to the case of Muhammad Tahir Adil and 9 others v. Bakhtiar Asad (2013 CLC 516) to which reference was also made by the petitioner's learned counsel, suffice it to observe that the facts therein were distinguishable as in the said case permission to produce adversary was accorded under Order XVI, Rule 21, C.P.C. as one of the persons was an executant of the document while the other one was recipient of the consideration. No such situation appears to obtain in the present case. The argument that the petitioner has the choice to decide which witness he shall opt to produce appears to be based on incorrect assumption of law. Article 131 of Qanun-e-Shahadat Order, 1984 in law empowers the court to disallow irrelevant or inadmissible evidence and to regulate the process of production of evidence: "131. Judge to decide as to admissibility of evidence: (1) When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant, and the Judge shall admit the evidence if he thinks' that the fact, if proved, would be relevant and not otherwise,
(2) If the fact proposed, to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first-mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
(3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact."
Considering the facts of the present case wherein the petitioner did not claim the defendants to be witnesses of any alleged transaction of oral gift nor of any acknowledgement of such transaction and, therefore, in the first instance the petitioner and his co-plaintiffs are expected to produce their own evidence in the affirmative in support of the alleged plea of oral gift and they could not be allowed to produce the opponent as a witness simply for the purpose of causing embarrassment of undergoing cross-examination by counsel for the petitioner as also by counsel for the co- defendants. Nevertheless the court, if at any stage, feels that examination of any of the parties who had not entered appearance in the witness-box is necessary it can exercise of its jurisdiction under Order XVI, Rule 20, C.P.C. to direct any of the parties in the suit to appear in the court and give evidence or produce documents in their possession and power and the rules regulating the witnesses shall apply in such eventuality. Since no specific reason or explanation has been given for producing defendant No.6 in the first instance as a witness by the petitioner/plaintiff the learned Addl. District Judge justifiably interfered with the order of the learned Civil Judge and set it aside and in doing so no error of law was committed nor any ground could be made out in instant petition or during the course of oral submissions at the bar as to call for interference.
8. For the reasons hereinabove, the revision petition is dismissed.