Through this Petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, a challenge has been made to orders dated 17-2-1988 and7-7-1988 passed respectively by respondents Nos.3 and 4 whereby partial closure of the evidence of Muhammad Abbas Petitioner, in an objection Petition, was ordered, and upheld.
2. Briefly put the facts leading to the institution of this Petition are that Muhammad Abbas Petitioner, hereinafter referred to as decree-holder, obtained an ejectment order from the Court of Rent Controller, Lahore on 29-11-1984 against his tenant/Barkat Ali. The decree-holder got the possession of the tenanted premises in execution of the warrant of possession issued by a learned Civil Judge/Rent Controller, Lahore on 27-3-1985. Respondent-- Zaheer-ud-Din Babar, hereinafter referred to as objector, filed an objection Petition under Order XXI, rule 10 and section 12(2), C.P.C. claiming restoration of possession of the dispute premises to him. The decree-holder contested the application and the evidence of the objector was recorded by the learned trial Court. The matter was fixed for evidence of the decree-holder for 13-2-1988. Decree-holder's witness Muhammad Hussain, an employee in the office of ADC (G) Lahore, was reported to be indisposed and the learned Civil Judge allowed another opportunity to the decree-holder to produce him on 17-2-1988 and further directed hire to produce his witness Liaqat at his own responsibility, on the said date `otherwise his evidence shall be closed'. As the afore referred witnesses were not in attendance even on 17-2-1988, the learned Civil Judge proceeded with closing the evidence of the decree-holder, except for his own statement. Order dated 17-2-1988 was challenged by the petitioner/decree-holder in revision and the same was dismissed by Mr. Muhammad Munir, Additional District Judge, Lahore on 27-7-1988. Hence this Petition.
3. In support of this Petition it is contended by the learned counsel for the Petitioner that the learned Civil Judge did not make a resort to any coercive measures for securing the attendance of decree- holder's witnesses illegally and the same illegality having been perpetuated by the learned revisional Court, the impugned orders cannot be sustained. He has relied upon M/s. Naeem Engineering Corporation v. Government of Punjab and another 1988 SCM R 1167 and Mst. Bashir Bibi v. Aminuddin and 9 others (PLD 1973 SC 45) in support of his pleas that the orders dated 17-2-1988 and 27-7-1988 have been passed by respondents Nos.3 and 4 beyond the confines of their respective jurisdiction and are liable to be interfered with by this Court in the exercise of its Constitutional jurisdiction. According to him, neither the learned Civil Judge had directed the decree-holder to have the process issued all over again for summoning Muhammad Hussain nor the decree-holder could be legally burdened with the responsibility-to produce Liaqat P.W. Order dated 17-2-1988, to the extent of Muhammad Hussain afore referred is the result of misreading of order dated 13-2-1988 in that in the latter order the decree-- holder was not at all bound down to produce the said witness on the next date. As he had already been served with the process to appear on 13-2 1988, he was legally bound to appear, with relevant record, on the adjourned date of hearing and the decree-holder is not to blame for his alleged failure to appear on 17-2-1988 before the learned Civil Judge.
4. The learned counsel for the contesting respondents has reiterated the preliminary objection to the maintainability of this petition against the impugned orders passed by respondents Nos.3 and 4 in the exercise of their jurisdiction. On merits, he has controverted the arguments addressed on behalf of the decree-holder/petitioner and argued that the precedent relied upon do not advance the case of the decree-holder/petitioner, as the same proceed on their own peculiar facts and circumstances.
5. I have considered the respective arguments addressed at the Bar on behalf of the parties and have perused the reports of the precedents relied upon by the learned counsel for the decree- holder/petitioner. In M/s Naeem Engineering Corporation (supra) it was held that witness was present on a specific date but the Presiding Officer was on leave, so no hearing could take place and as the concerned party had adequately discharged its responsibility regarding the deposit of process-fee for the next date" .... if witness, a Government servant, did not attend Court, it was duty of Court to proceed against him under Order XVI, R. 10, C.P.C.". In Mst. Bashir Bibi (supra) also the question about the failure of a witness to comply with the summons issued by the trial Court to him was considered and it was observed as under:- "We have not been able to discover any provision in the Code of Civil Procedure where under the responsibility can be put on a party to produce its evidence on pain of losing its right to produce that evidence. Even in the 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 the 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."
The dicta in the precedent cases is not attracted to the facts and circumstances peculiar to the instance case. Hence, the learned Civil Judge had allowed another opportunity to the decree- holder/petitioner to produce Muhammad Hussain aforereferred on 17-2-1988. As regards Liaqat it was specifically mentioned in the order dated 13-2-1988 that the decree-holder shall be responsible for the production on the next date, i.e. 17-2-1988. It was on the failure of the witnesses to appear on the adjourned date that the learned Civil Judge proceeded with the closure of decree-holder's evidence to their extent. It is not the case of the decree-holder/petitioner that either he had summoned the official witness all over again or that he complained against insufficient time allowed to him by the trial Court to 'summon Muhammad Hussain on 13-2-1988 for 17-2-1988. That being the position, I am in agreement with the learned counsel for the objector that the precedent cases do not advance the case of the decree-holder.
6. As regards the plea that the order dated 17-2-1988 to the extent of Muhammad Hussain is the result of misreading of order dated 13-2-1988, suffice it to say that the decree-holder/petitioner was allowed another opportunity to produce him on the next date as the learned Court was satisfied with the reasons for his failure to appear on 13-2-1988. To the extent of Muhammad Hussain, the decree-holder/petitioner was not bound down to produce him, as alleged. The observation made by the trial Court in its order " dated 17-2-1988 that has been incorrectly transcribed on behalf of the decree-holder in the fair copy of Annex `B' indicating that the words were not mentioned and that they were. So, the argument on behalf of the decree-holder is the result of misreading of order dated 17-2-1988 itself. Moreover, the then learned counsel for the decree-holder had signed the interim order of the trial Court dated 13-2-1988. It is not the case of the decree-holder that he had not undertaken to produce his evidence on the adjourned date of hearing. That being the position, he is himself .to blame for not obtaining the requisite process for Muhammad Hussain to appear as his witness on 17-2-1988.
7. In the absence of any jurisdictional error in the impugned order, I am not inclined to the view that any case for interference therein by this Court in these proceedings has been made out. The instant petition is without any merit and is accordingly dismissed leaving the parties to bear their respective costs.