This Civil Revision arises out of a suit filed by Lal Khan, predecessor-in---interest of the petitioners for declaration and consequential relief. The petitioners had challenged the validity of gift deed No. 1578 dated 16-8-1982, which was said to have been executed by Karam Khan deceased a few days before his death. The suit was resisted by the respondents, who filed their written statement in the Court. The trial Court framed five issues on the pleadings of the parties and allowed them to produce their evidence. .
2: The petitioners/plaintiffs closed their evidence on 22-3-1986. Prior to that, they had filed an application for summoning Dr. Musht4q Ahmad on 5-11--1985, which was allowed by the trial Court and the expenses amounting to Rs. 100 for summoning the doctor were deposited in the Court. It may be mentioned that the said doctor had given treatment to Karam Khan deceased and also issued a certificate, which was produced, in original in the trial Court. It appears that the doctor was summoned as a witness but when he did not appeal, the Court did not summon him thereafter. The plaintiffs' suit was dismissed by the trial Court vide judgment and decree dated 28- 11-1987. The petitioners' appeal against the said judgment and decree is pending before the learned Additional District Judge, Vehari.
3. The petitioners made an application before the appellate Court under Order XLI, rule 27 of the C.P.C. For additional evidence for proving the medical certificate through the evidence of Dr. Mushtaq Ahmad. Tile application was dismissed by the learned Additional District Judge, Vehari, vide order dated 4-7---1988. Hence, this petition.
4. I have heard the learned counsel for the parties and gone through the impugned order as well as the relevant record available on the file of this petition. It is not denied by the respondents that the petitioners' application for summoning the doctor was allowed by the trial Court on 5-11-1985 and the necessary expenses were deposited by the petitioners. Hence, it was for the Court to procure the attendance of the doctor through the Court process. The petitioners were not in a position to bring the doctor alongwith them because he was a Government servant and could not leave the hospital voluntarily. It was held in the case of Mst. Bashir Bibi v. Amin-ud-Din (PLD 1973 SC 45) that:-- "We have not been able to discover any provision in the Code of Civil Procedurewhereunder the responsibility can be put on a party to produce its evidence on pain (if 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."
It was further observed that the Court should resort to its coercive process for summoning the witnesses and should not refuse to do so merely because the party had failed to have their service effected by Dasti Summons. In the case of Muhammad A.I v. Sharifan Bibi (1984 CLC 945), while dealing with the question of summoning two doctors, the Court observed as under:-- "Both Dr. Aftab Ahmad and Dr. AA. Aziz are Government servants who cannot be produced in Court by the party at his own risk and responsibility."
5. Evidently, the doctor's certificate was material for a just decision of the case. The petitioners, no doubt, had closed their evidence in the trial Court on 22--3-1986 but prior to that, they had taken necessary steps for summoning the doctor with a view to proving the medical certificate. The trial Court committed an illegality in not procuring the attendance of the doctor through Court process.
The respondents are aware of the certificate, which had been placed on the file of the trial Court.
They are not being taken by surprise at the appellate stage by production of an entirely new document. The Appellate Court erred in law in dismissing the application under Order XLI, rule 27 of the C.P.C. On the erroneous assumption that by so doing it would be permitting the applicants to fill up the gaps in their case. On the contrary, by allowing the said application, the Court would have remedied the wrong done to the petitioners during the trial and obviated the possibility of a remand at the appellate or revisional stage. I, therefore, allow this revision petition and direct the Appellate Court to frame an additional issue regarding the state of health of Karam Khan deceased and his capability to make the disputed will in the light of the averments contained in the application dated 23-12-1987. The Court should summon Dr. Mushtaq Ahmad and examine him as a witness on behalf of the petitioners/plaintiffs, particularly in relation to the medical certificate issued by him. The respondents shall also be allowed an opportunity to produce evidence in rebuttal. Thereafter, the Appellate Court shall decide the appeal on merits in the light of the evidence recorded by the trial Court as well as the additional evidence recorded in pursuance of this order. The parties shall appear before the learned Addl. District Judge, Vehari, on 26-2-1989. No order as to costs.
H.B.T./S-519/L