' Dispute involved in this civil revision relates to an evacuee property in the shape of a plot of land.
Respondent No,1, Mst. Tayyaba Begum, filed suit against the petitioners, namely, Mst. Shambilid Ghori and Syed Ijaz Hussain Rizvi, and the public-at-large, claiming ownership of the entire plot.
She maintained that it had been transferred to her on 13th June, 1977. Suit was resisted by the petitioners contending that the plot had been transferred to them earlier, in equal shares, by means of Permanent Transfer Deed, issued on 22nd July, 1963. No one from the public-at-large turned up to resist the suit. In view of pleadings of the contesting parties, issues were framed.
Respondent led evidence and then the petitioners were called upon to produce evidence in rebuttal. They examined Mushtaq Asif (D.W.1), an official of the Settlement Department. He placed on record two documents, namely, Ex.D.W.1/1 and Ex.D.W.1/2, but did not produce file relating to the property in dispue, which he was also required to bring. He explained that the said file had been taken into custody by the Anti-Corruption Department. The petitioners, therefore, summoned Record-Keeper of the Anti--Corruption Department to produce the file in question. He entered appearance on 16th May 1982 and 21st April, 1984, but did not bring the requisite file stating that it was not traceable. The suit was then adjourned, from time to time, to await the file. Last date fixed in this behalf was 17th September, 1984 when the petitioners' evidence was closed and the suit decreed. Petitioners went in appeal before an Additional District Judge, but in vain. Hence this civil revision.
2. In the impugned judgments it was pointed out by the learned lower Courts that the petitioners were given several opportunities to produce the Record-Keeper on their own responsibility but as they did not do so, and the case was getting very old, their evidence deserved to be closed under Order XVII, rule 3 of the Code of Civil Procedure.
3. It was contended by learned counsel for the petitioners that since the Record-Keeper was an official witness the petitioners could not be burdened with the responsibility of producing him as a witness. He relied on Messrs Naeem Engineering Corporation v. Government of the Punjab through the Secretary Agriculture and another (1988 SCMR 1167), Mst. Bashir Bibi v. Aminuddin and 9 others (PLD 1973 SC 45), Abdu Ghani and another v. Mst. Nur Jahan and others (1976 Law Notes (Lahore 598) and Muhammad Sadiq v. Walayat Khan and others (PLD 1983 Azad J&K 7), which support his plea.
4. In reply, it was submitted by learned counsel for the respondent that the case-law cited by learned counsel for the petitioners was no longer holding the field. He relied on Mian Ghulam Jafir v.
Mian Muhammad Nawaz and another (PLD 1977 Lah.965) in which a contrary view had been taken. It was also added by learned counsel for the respondent that the petitioners were extremely negligent in pursuing their matter and were, therefore, not entitled to any indulgence. In this connection, reference was made by him to order, dated the 21st April, 1984, passed by the learned trial Court by which it had closed the petitioners' evidence other than the statement of the Record- Keeper.
5. While dealing with the case of Mian Ghulam Jafir, cited by learned counsel for the respondent, it was pleaded by learned counsel for the petitioners that in the said case Aftab Hussain, J. As he then was, distinguished it from the aforementioned case of Abdul Ghani and another, on the ground that by the time the case of Abdul Ghani and another was disposed of, provisions of rule 7- A had not been inserted in Order XVI of the Code of Civil Procedure.
6. Rule 7-A reads as under:- "7-A Service of summons by parties.--(1) Except where it appears to the Court that a summons under this Order should be served by the Court in the same manner as a summons to a defendant, the Court shall make over for service all summonses under this Order to the party applying therefor.
(2) The service shall be effected by or on behalf of such party by delivering or tendering to the witness in person a copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court.
(3) Rules 16 and 18 of Order V shall apply to summons personally served under this rule, as though the person effecting service were a serving officer.
7. In the above-cited case of Mian Ghulam Jafir, it was observed that summonses of witnesses shall generally be given to the person who wanted to examine them and that reasons should be recorded by the Court if it decides to act otherwise. Argument of learned counsel for the petitioners was that in the instant case learned trial Court did record reasons, in its order dated the 25th February 1984, for not giving dasti notices to the petitioners and thus the case of Mian Ghulam Jafir was of little avail to the respondent.
8. Learned counsel for the petitioners went on to submit that the case of Muhammad Sadiq, relied upon by him, was decided after inclusion of rule 7-A in Order XVI of the Code of Civil Procedure, and in that case it was held by the High Court of Azad Jammu and Kashmir that responsibility for producing an official witness could not be placed on any party.
9. Another grouse made by learned counsel for the petitioners was that no summons was issued by the learned Civil Judge for the date on which the evidence of the Record-Keeper was closed although the petitioners had deposited process fee therefor and had also furnished forms of summonses duly filled in by them, for being issued by the learned Civil Judge, after appending his signatures. In other words, his plea was that summonses for the said date were not at all given to the petitioners. He also invited my attention to the unsigned summonses lying on the record of the learned trial Court. While dealing with this plea of the petitioners, it was argued by learned counsel for the respondent that it was for the petitioners to pester the learned Civil Judge to get his signatures on the summonses and if they failed to do so they cannot be permitted to make capital out of the non-issuance of the summonses.
10. A perusal of order-sheet of the learned trial Court would reveal that the suit was fixed by the learned Civil Judge for 21st April 1984, for petitioners' evidence, including the statement of the Record-Keeper. Submission then made by the petitioners was that it was beyond their power to produce the Record-Keeper who was an official witness. Appreciating this plea of the petitioners, the learned Civil Judge closed their evidence except to the extent of the statement of the Record- Keeper. In this manner, he agreed with the petitioners that it was not possible for them to drag the Record-Keeper before the learned trial Court and thus took upon himself the responsibility to procure his attendance by process of the Court. Thereafter, when the ordinary process did not yield the desired result, he did issue warrant for his arrest for 9th December, 1981. All this speaks of his making departure from the normal course set out in rule 7-A of Order XVI of the Code of Civil Procedure, requiring the parties to produce their respective witnesses by taking summonses themselves. Thus, even on the reasoning given in the case of Mian Ghulam Jafir, relied upon by learned counsel for the respondent, the learned trial Court could not, after making order, dated the 21st August, 1984, throw responsibility of producing the Record-Keeper on the shoulders of the petitioners.
11. Even if the view taken is that the learned trial Court could oblige the petitioners to produce, on their own responsibility, the Record-Keeper, they could not possibly do so without the issuance of summonses by the said learned Court. What the petitioners could possibly do in this regard was to deposit the process fee and to furnish forms of the summonses duly filled in by them which was, admittedly, done by them. Then, it was for the learned Civil Judge to affix his signatures on the summonses and return them to the petitioners or their learned counsel but he did not do so, for reasons best known to him. The petitioners or their learned counsel could not hold the hands of the learned Civil Judge and compel him to sign the summonses. They had done their duty, but the learned Civil Judge had failed to do his own. It is thus a case of omission on the part of the learned Civil Judge himself. It is well-settled principle of law that no party should suffer for any act of the Court. Such act can be an act of omission or that of commission. In the circumstances of this case, it was an act of omission, for which the petitioners should not suffer. To put it differently, it was not just and proper for the learned Civil Judge to punish the petitioners for his own fault.
12. It is also noteworthy that while decreeing the suit against the petitioners by closing their evidence, it was simply stated by the learned Civil Judge that their evidence was not there. He did not record the petitioners' plea regarding the absence of the witness, namely, the Record-Keeper.
He very conveniently omitted to mention that the petitioners had deposited process fee and also furnished forms of the summonses referred to above, but they were not actually issued. Reason for this shortcoming on his part was, probably, the fact that he had himself failed to sign the summonses. It was also not stated in the said order that the summonses were not signed because the petitioners did not turn up to collect them. In this state of affairs, his order, closing the petitioners' evidence, is not a speaking one and deserves to be interfered with on that ground also.
13. Upshot of the above discussion is that the learned Civil Judge had committed material irregularity in closing evidence of one of the witnesses of the petitioners, namely, the Record- Keeper. For that reason, judgment and decree passed by him are not sustainable. Strangely enough, learned Additional District Judge also did not attend to the absence of the signatures of the learned Civil Judge on the summonses in question although plea in this regard was taken by them in the grounds of appeal and, according to the learned counsel for the petitioners, was also raised before him while presenting arguments, in writing, as desired by him (Additional District Judge). These arguments are not now on the record, perhaps, for the reason that, as stated by learned counsel for the petitioners, verbal direction was given by the learned Additional District Judge for filing written arguments. It was not denied by learned counsel for the respondent that written arguments were furnished by the parties. Written arguments thus filed appear to have been withheld by the learned Additional District Judge. Above omission of learned Additional District Judge to take care of the shortcoming of the learned trial Court also amounts to material irregularity in the judgment and decree passed by the learned appellate Court calling for interference by the Court in exercise of its revisional jurisdiction.
14. In result, I accept this civil revision, set aside the judgments and decrees passed by the learned lower Courts and remand the suit to the learned Civil Judge with the direction that he shall himself procure attendance of the Record-Keeper of the Settlement Department by issuing appropriate processes and also oblige him to produce the record needed by the petitioners and then re- decide the suit afresh and in accordance with law. There shall be no order as to costs.