' WALI MUHAMMAD KHAN, J.-- Mst. Urman Jee plaintiff/petitioner herein filed a suit for specific performance of agreement dated 3-7-1982 against Arshad Javed, defendant/respondent No,4 herein in respect of land measuring 26 kanals 16 marlas for a sum of Rs,1,80,000. The defendant/respondent No,4 in his written statement admitted the receipt of the sale consideration and agreed to the passing of the decree in favour of the plaintiff/petitioner. In spite of the same, the learned trial Judge framed issues in the case on 4-5-1985. However, before any evidence could be recorded in the case, Kundal Khan, respondent No,3 herein submitted an application for either staying the proceedings in the case till the decision of Suit No,205/1 or implead him as a party.
Since the other Suit viz. 205/1 was also pending in the same Court, the present suit was also adjourned from time to time alongwith that suit. On 9-9-1985 plaintiff/petitioner conceded the impleadment of Kundal Khan, respondent No,3 as a party and accordingly the Court ordered the filing of amended plaint to array him in the panel of the defendants and make necessary allegations against him as well, if necessary. After the filing of the amended plaint, fresh written statements were filed, issues were framed, evidence of the plaintiff/petitioner was recorded and the case was adjourned several times for the evidence of the defendants and ultimately on 1-3- 1987 statement of Shahzada Khan attorney of the defendant/ respondent No,4 was recorded and the learned counsel for the defendants closed his evidence. Later on, on 10-3-1987 Kundal Khan defendant/respondent No,3 submitted an application that Arshad Jawaid, defendant/respondent No,4 may be summoned to Court and he may be allowed to cross-examine him. This application was resisted and the learned trial Judge (respondent No,2 herein) vide his order dated 15-4-1987 dismissed the same. Feeling aggrieved therefrom Kundal Khan, defendant/respondent No,3 filed revision petition under section 115 of the Civil Procedure Code which was accepted by the learned District Judge, Kohat (respondent No,1 herein) vide his order dated 3-11-1987 and by setting aside the order of the trial Court (respondent No,2), ordered the summoning of Arshad Jawaid defendant/respondent No,4 for cross-examination. Hence the instant constitutional petition calling in question the aforementioned order of the learned District Judge, Kohat as no other remedy is provided for in the normal law.
2. We have heard learned counsel for the parties and have perused the record of the case with their assistance.
3. The crucial point for determination in the instant petition is whether the District Judge, Kohat (respondent No,1) in the exercise of his revisional jurisdiction, could set aside the order of the trial Judge (respondent No,2) passed by him under his discretionary powers without there being any manifest illegality or material irregularity or any jurisdictional error. It is also to be seen whether there is any provision in the Civil Procedure Code empowering the Courts to summon the party simply for cross-examination without examining them as a witness either as PW or DW or CW.
Section 138 of the Old Evidence Act corresponding to Article 133 of Qanun-e-Shahadat, 1984 provides for the examination, cross-examination and re-examination of the witnesses. According to it witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross- examined, then (if the party calling him so desires) re-examined. There is no provision anywhere in the Law of Evidence that without examinationin-chief a person can be cross-examined by the adverse party. There is no provision either in the Evident Act or in the Civil Procedure Code whereby a party to a suit is under obligation to appear as his own witness and tender himself for cross- examination.
4. No doubt, a party has a right to obtain summons against any witness including his adversary if he feels the necessity of eliciting from him any important fact in issue supporting his case but that is permissible only if he examines him as his own witness. As a fairplay, the parties are expected to appear as their own witnesses so that the opposite party has the opportunity to cross-examine them, but if they do not like to enter into the witness-box for evidence there is no provision in law to force them for the purpose. The Court can only draw an adverse inference against them from their such conduct. In this connection reliance is placed on the judgment of Lahore High Court in case "Puran Singh Relu Singh v Mathra Das" reported as AIR 1934 Lahore 126, the relevant dictum whereof is reproduced below:-- "If a party appears as witness on behalf of the opposing party, the Court should, before proceeding to record his statement, question him or his counsel as to whether he does not propose to appear as his own witness. If that party then declares that he does not propose to appear as his own witness, the Court should point out to the party producing him that ordinarily speaking the matter should be left as it is and the Court be left to draw any adverse inference which may justifiably be drawn from the refusal of the party to appear in the witness-box and subject himself to cross- examination. If the party however insists on examining the opposite party as his own witness, the Court should be careful not to allow him to cross-examine his own witness, because unless the witness is declared hostile, the party producing the witness has no right to cross examine his own witness."
5. The relevant provisions of law empowering the Court to summon witnesses or parties to litigation is contained in Article 161 of Qanun-e-Shahadat, 1984 and 16 rule 14 of the Civil Procedure Code which are to the following effect:-- ' Article 161: Judge's power to put questions or order production:--The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant, and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross- examine any witness upon any answer given in reply to any such question: ' Provided that the judgment must be based upon facts declared by this Order to be relevant, and duly proved: ' Provided also that this Article shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under Articles 4 to 14, both inclusive, if the questions were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Article 143 or 144; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted. ORDER 16, RULE 14, C.P.C.
"14. Court may of its own accord summon as witnesses strangers to suit subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document."
6. A careful reading of the above would make it clear that under Article 161 of the Qanun-e- Shahadat, 1984, the Court can ask question relevant or irrelevant, of any witness or any party to discover proof of relevant facts but the parties have not been given any rights to cross-examine them upon any answer given in reply to such question, except with the leave of the Court. Under Order 16, rule 14, C.P.C. The Court is invested with ample powers to summon any person, to give evidence or produce document, but this power does not extend to summoning of a party as a witness. The learned appellate Court was conscious of this legal position and therefore, it ordered the summoning of Arshad Jawaid, defendant/respondent No,4 in the purported exercise of its dicretion under section 151 CPC but we think that in the exercise of its revisional jurisdiction, it could only satisfy itself whether the order of the learned lower forum suffered from any jurisdictional error, material irregularity or patent illegality or not, and was not competent even to interfere with the discretion properly exercised by the subordinate Court.
7. On merits too, the application of defendant/respondent No,3 for summoning Arshad Jawaid, defendant/respondent No,4 did not merit consideration. The present suit was for specific performance of an agreement to sell in which only plaintiff/petitioner and defendant/respondent No,4 were necessary parties and the applicant defendant/respondent No,3 had only been impleaded because he had earlier filed a suit for pre-emption against a previous transaction of sale which was allegedly cancelled later on by the parties to the said transaction of sale. The grievance of the applicant, defendant/respondent No,3 that the cancellatior had either not taken place or was not binding on him shall be gone into, in his suit for pre-emption and cannot be adjudicated upon in this suit. He can at the most, stress for the stay of this suit till the decision of his suit for pre-emption.
8. The upshot of the above discussion is that we accept the instant constitutional petition and hold that the impugned order of the learned District Judge, Kohat (respondent No,1) dated 3-11-1987 summoning Arshad Jawaid defendant/respondent No,4 for cross-examination is without lawful authority and of no legal affect and the same is accordingly set aside. The case is sent back to the learned trial Judge (respondent No,2) for proceeding with the same on merits according to law.
There is no order as to costs.