' This revision petition is directed against the interim order passed by Sub-Judge Pallandari on 29th June, 1993, whereby application moved by the petitioner-plaintiff for getting her statement recorded as witness was rejected.
2. For the resolution of the controversy involved in the case, there is no need to mention in detail the facts of two suits which the parties brought against each other in the trial Court, suffice it to state that Karam Hussain non-petitioner has instituted a suit against the petitioner for restitution of conjugal rights whereas the counter-suit filed by the petitioner for declaration to the effect that as she has been divorced by her husband Karam Hussain as such through a decree of perpetual injunction he may be refrained from presenting her to be his wife. Alternatively she has sought a decree for dissolution of her marriage on the basis of Khula'.
3. In these suits keeping in view the pleadings of the parties, the trial Court on 11th July, 1990, framed as many as 10 issues including the one for relief. As initial burden of some important issues was laid on non-petitioner Karam Hussain, so the trial Court ordered him to begin with his evidence. His evidence was finally closed on 11th April, 1991 and the petitioner, Mst. Shisham Jan was directed to produce her evidence. In case she wanted to get her witnesses summoned through Court, she was required to submit the list of the witnesses alongwith their expenses in the Court within a period of 10 days. She submitted the list of her witnesses and also deposited expenses thereof in the trial Court.
4. On 30th April, 1991, the first date of hearing for recording the evidence of the petitioner, it appears that two of the witnesses, namely, Taj and Banaris, despite service, failed to appear before the trial Court as such the trial Court was constrained to apply coercive methods to secure their attendance by issuing bailable warrants and the next date was fixed for 5th June, 1991. On this date, the order is silent about these two witnesses, however, it is mentioned in the order that Muhammad Zahoor a witness of the petitioner, despite service, was absent, as such a bailable warrant was issued in order to secure his presence. It is further recorded in the order that process was not issued with regard to another witness, namely, Razaq as such the office was directed to submit explanation for this negligence. Then different dates were given but it appears that despite service the witnesses were not appearing in the trial Court to get their statements recorded in the suit on behalf of the petitioner.
5. On 15th July, 1992, another witness, Muhammad Afsar by name, despite service, did not appear in the trial Court. On this date, the Presiding Officer of the trial Court was also on leave, therefore, no order was passed against this witness.
However, on 5th July, 1992, a bailable warrant in the sum of Rs,500 was issued to secure the presence of this witness. It appears that on subsequent dates, despite service, the said Muhammad Afsar failed to turn up before the trial Court. On 2nd February, 1993, the petitioner was ordered to, get bailable warrant from the trial Court and to produce the same for service before the Sub-Judge Kotli. She was also directed to produce the remaining evidence on her own responsibility. In the light of this order, on 15th April, 1993, the next date of hearing, the trial Court passed the following order:--- {{URDU TEXT}} ' In the light of this order on 23rd May, 1993, the trial Court closed the evidence of the petitioner and posted the case for hearing the arguments. On 13th June, 1993, the petitioner moved an application that she may be allowed to appear herself as witness and get her statement recorded. Objections were invited from the other side which were accordingly filed on 20th June, 1993 and after hearing the parties on 26th June, 1993 on this application, the trial Court vide impugned order dismissed this application. Hence the present revision petition.
6. I have heard the arguments of the learned counsel for the parties and have also gone through the record.
7. In this case, despite the fact that petitioner had sought help of the trial Court for getting her witnesses summoned, the trial Court directed her to produce her witnesses on her own responsibility as a matter of last opportunity vide order, dated 15th April, 1993. It was in the notice of the trial Court that the persons who were cited as witnesses by the petitioner, were avoiding their presence before the trial Court. In this view of the matter, on certain dates, certain coercive steps were taken by the trial Court by issuing bailable warrants against such witnesses in order to secure their presence before the trial Court.
8. Order 16, C.P.C. Deals with the summoning and attendance of the witnesses of the parties. Order 16, Rule 1 empowers the parties to obtain on application, to the Court, summons for persons whose presence is required either to give evidence or to produce the documents. Under Rule 2 of the same Order, the parties, for this purpose, are required to deposit expenses of the witnesses. Rule 10 of this Order lays down that where a party fails to comply with the summons and the Court sees reasons to believe that evidence of any person is material who without any lawful excuse, has failed to appear before the Court, or has intentionally avoided the service, may even issue a proclamation requiring him to attend or to give evidence or to produce documents. It is laid down in the same rule that for such purpose, a copy of the summons is to be affixed on the outer door or some conspicuous place of the house in which the witness resides ordinarily. Under sub-rule (3) of the said Rule, the Court has got powers to issue a warrant either with or without bail for the arrest of such person and even is empowered to make an order for the attachment of his property and may even impose a fine as it thinks fit as laid down under rule 12 of the said order.
9. The witnesses in this case failed to appear in the trial Court and this was not on account of any fault on the part of the petitioner. Order 16, C.P.C. Which deals with summoning and attendance of the witnesses, as discussed earlier, responsibility cannot be placed on a party to produce evidence on its own responsibility. All the orders which have been passed in this case, arc bad in the eye of law. In "Mst. Bashir Bibi v. Aminuddin and 9 others" 1972 SCM R 534, the witnesses were avoiding service before the trial Court. The trial Court felt advised to direct the plaintiff-appellant to produce evidence on pain of losing his right and the plaintiff-appellant had undertaken to produce his own evidence later on reported his inability to do so and applied for process of the trial Court for securing the attendance of the witnesses. The trial Court turned down this request. The matter was taken in revision before the High Court without success and finally the Supreme Court while deciding the appeal in favour of the plaintiff-appellant observed as under:--- "We have not been able to discover any provision in the Code of Civil Procedure whereunder the responsibility can be put on a party to produce its evidence on pain of 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. The Court may, in exercise of its inherent powers to prevent abuse of the process of the Court, decline to accede to such a request where it is found that the party is deliberately seeking to prolong the case to the grave disadvantage of the other side, and that the evidence sought to be adduced has no material bearing on the decision of the case. In the present case, one of the appellant's witnesses namely, Abdul Ghafoor, whom she wanted to summon, was present in Court on the 9th of June, 1970, and was actually bound down by the Court to attend on the next date of hearing. His failure to attend thereafter was not due to any fault of the appellant, and the Court must have moved its own coercive machinery to procure his attendance. As regards the other witness, who is an Advocate, there should have been no difficulty for the Court to secure his attendance by sending a summons to him or by resort to coercive process if the witness was refusing to attend or was avoiding appearance. But there appears to be no justification in law or on the facts of this case as mentioned above, for refusal by the Court to summon these witnesses through its own process, merely because the appellant had failed to have their service effected by .Dasti summonses."
10. In the light of the above observations, this revision petition is accepted with costs and the impugned orders passed by the trial Court are hereby set aside. It is directed that the witnesses of the petitioner shall be duly summoned by the trial Court resorting to legal process as contained under Order 16, Code of Civil Procedure.