1. ' This civil revision is filed by Mst. Rakhmat Jan, plaintiff in the suit for mandatory injunction for removal of the constructed wall and encroachment from the street. She was owner of a house in Tench Bhatta, Rawalpindi. In front of her house, a 12' wide street was stated to exist. Defendants are alleged to have encroached upon some parts of this street. For removal of the alleged encroachment and to keep street open for free passage, plaintiff/petitioner Mst. Rakhmat Jan filed a civil suit in the civil Court at Rawalpindi. Alongwith the suit, she applied for an interim relief restraining the defendants from raising construction upon the street in question. It appears that application for interim relief was dismissed on 22-1-1986 by the trial Court. Plaintiff filed an appeal.
2. On 26-1-1986, learned Additional District Judge, who was seized of the appeal directed maintenance of status quo. Order in regard to status quo was stated to have been served upon the respondents. Despite that, respondents are shown to have raised some construction upon that part of the street which was encroached upon by them. On 1-2-1986, petitioner (Mst. Rakhmat Jan) applied under Order XXXIX rule 2(3) of C.P.C. For initiating contempt proceedings against the respondents for wilful disregard of the status quo order. Respondents resisted the application and denied its contents. On 20-1-1987, learned Judge below settled following issue for determination:- "Whether the respondents have violated the stay order issued by the Court on 26-1-1986? O.P.A." and postponed the application for contempt for recording of the evidence. Petitioner completed her evidence on 14-3-1988 and 6-4-1988 was the date fixed for respondents' evidence. On this date, when the case was called on for hearing, though the petitioner herself was in attendance, her counsel was not available because of his other professional engagements in other Courts. For a while, the learned Judge put off the file and again re-called it. Again counsel for the petitioner did not turn up. In these circumstances, learned Judge recorded evidence of the respondents which went uncross-examined by the petitioner. On the succeeding day, an application was filed for re- calling respondents' witnesses for cross-examination. Certain facts were stated in the application to show the circumstances leading to the absence of the learned counsel at the time when the case was called on for hearing by the Court. Respondents submitted their reply and controverted the averments in the application for re-calling of the witnesses for cross-examination. On 9-3-1989, learned Judge, .Below dismissed the application for re-calling of the witnesses for cross- examination. In his view there was no good ground for absence of the learned counsel for the petitioner and that the petitioner who herself was present was afforded an opportunity, to cross- examine the witnesses, which she did not avail of. Against this order, a revision petition has been filed in this Court.
2. Two points of importance arose for decision in the civil revision.
3. ' First, whether the Court had jurisdiction to re-call respondents' witnesses for their cross- examination and second; whether in the existing circumstances prayer for cross-examination should have been allowed by the Court. I shall first advert to the first question and thereafter attend to the second question. The situation which :rose in the present case as disclosed by the facts recounted above is for which no separate provision has been made in the Code of Civil Procedure and remedy for such an eventuality can only be found in section 151 of the Code of Civil Procedure.
4. Order XVIII, rule 17 of the Civil Procedure Code which is in the following terms is of not much help in a such like situation.
5. ' Rule 17 provides:-- "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."
6. A close reading of this rule indicates that the right to put questions at any stage of a civil suit or re- call any witness for the said purpose is given to the Court only. As the rule itself shows, the Court can put questions to the witnesses re-called. Ordinarily no cross-examination is allowed upon the answers to the questions put by the Judge without his leave. The right to act under this rule is not restricted to the Court acting suo motu but may be exercised at the instance of a party to the suit or proceedings. The powers of the Court to act under the above rule 17 though widely expressed yet being discretionary in nature ought to be exercised with care and circumspection. In Sultan Saleh Bin Omer v. Vijayachand Sirimal a I R 1966 Andhra Pradesh 295, it was observed that: "If circumstances warrant, an opportunity to a party to re-call a witness for examining, cross- examining or re-examining can be granted by a Court in the exercise of its inherent jurisdiction under section 151, C.P.C."
7. ' In Chairman Notified Area Council Bhanianagar and another v. Kudini Lingaraju Patra AIR 1974 Orissa 17, an identical question was resolved by recourse to inherent powers of the Court. In regard to inherent powers of the Court to re-call witnesses for cross-examination after the chief examination was complete, the Court held:-- "The situation which arose in the present case as disclosed by the facts recounted above, is one for which no specific remedy has been provided in the Code of Civil Procedure. The only far-reaching remedy which could be conceived of is to allow the case to be disposed of against the plaintiffs and then to appeal from that decree and get the lacuna removed. Such a remedy would merely protract litigation and cause harassment to the parties concerned. It is to meet such situations which are essentially procedural that section 151 has been enacted recognising the inherent power of the Court to make necessary orders for ends of justice. The inherent power of the Court recognised in section 151, C.P.C. Is very wide and is intended to be exercised at any stage of the litigation for ends of justice or to prevent abuse of process of Court subject to the only rider that if there is a specific provision in the Code of Civil Procedure to meet a particular situation it cannot be invoked. In the case of Padam Sen v. State of Uttar Pradesh AIR 1961 SC 218, the Supreme Court has said that-- "The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore, it must be held that the Court is free to exercise them for the purposes mentioned in section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intention of the Legislature. It is also well-recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code."
8. ' In another case of Manchar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527, the Supreme Court in dealing with section 151, C.P.C. Has expressed its opinion as follows:- ' Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court, it is a power inherent in the Court by virtue of its duty to do justice between the parties before it.
9. Further, when the Code itself recognises the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code. Thus, the inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by section 151 of the Code.
10. ' There is no other express provision in the Code as has already been stated above, which is adequate to meet the situation which arises in the present case. The relevant provision is Order 18, Rule 17, C.P.C. Which gives discretion to the Court to recall at any stage any witness who has been examined and may put such questions to him as he thinks fit. This provision does not enable a party to claim the privilege of recalling witnesses examined in chief by his opponent for the purpose of cross-examination. In the circumstances, I am clearly of opinion that this is just a case where section 151, C.P.C. Is fully applicable and the Court after being satisfied that the Advocate for plaintiffs could not be present in Court at the time when D.Ws. Were being examined in chief for reasons beyond his control, should have recalled the witnesses and allowed him to cross-examine them. Thus, in my opinion, the Munsif was wrong in rejecting the application under section 151, C.P.C.
11. The case of Andhra High Court AIR 1966 ' Andhra Pra. 295 is just a case in support of this view which I am taking. That is a more reasonable view than the one expressed by a Single Judge of this Court in (1961) 27 Cut Lt.
326. Further the view expressed there does not appear to me to be in accord with the view of the Supreme Court in the two cases referred to above regarding the inherent power of the Court recognized under section 151, C.P.-C. It also appears to me to be distinguishable on facts. In that case the plaintiff's witnesses were examined and discharged in absence of the defendants and their lawyers. On 14-4-1960 and immediately thereafter arguments were heard and the case was posted to 1-5-1960 for judgment. It is only thereafter that a petition under section 151, C.P.C. Was filed to reopen the case. In the present case the defence evidence had only closed and the arguments had not yet been commenced".
3. In my opinion, the view expressed in Orissa case enunciates a correct statement of law with which I respectfully agree and hold that independent of Order XVIII rule 17, C.P.C., the Court had also inherent powers to re-call witnesses for cross-examination, if it was satisfied that the absence of the counsel on the date fixed for examination of evidence was not deliberate, wilful or unavoidable.
12. Cross-examination is one of the recognised modes to discover truth and is a valuable right.
13. Obviously, petitioner who was an illiterate lady not conversant with the Court procedure and the legal forms could not effectively cross-examine the witnesses deposing against her. Having dealt with the jurisdiction and powers of the Court, I shall now proceed to examine as to the propriety of refusing the prayer for re-calling the witnesses for their cross-examination. It is stated that when the case was called on for hearing in early part of the day, learned counsel for the petitioner appeared to be busy before some other Court and in the later part of the day, had to leave for Islamabad to attend to a case in the Court at Islamabad and therefore the default came to be made. It is submitted that neither petitioner nor her counsel exhibited carelessness or negligence in prosecution of the case. Be that as it may, learned counsel's negligence, if any, cannot be fastened upon the party who engages him to represent her in Court proceedings. So far as the petitioner is concerned, no fault can be found with her conduct. She had reposed full confidence in her learned counsel and if for some reasons, learned counsel could not effectively discharge his legal duty in regard to her case, there is no reason to punish her. From records, it is sufficiently established that even the Advocate was not at much fault and upon the grounds stated in the application for re- calling the witnesses for cross-examination, lapse could be easily condoned. I am, therefore, satisfied that the absence of the Advocate for the petitioner was neither deliberate nor avoidable.
14. ' I would, therefore, accept the petition, set aside the order of learned Judge below and direct him to recall the respondents' witnesses and give the petitioner an opportunity for cross-examining them and thereafter to dispose of the contempt application in accordance with law. But this shall be subject to prior payment of Rs,500 as costs to the opposite party. However, there shall be no order as to costs in this Court.
15. Records be returned.
16. ' Parties shall appear before the Court below on 10-7-1989.