1. Through this revision petition the order of Family Court Poonch at Rawlakote dated 30-10-1997, whereby an application by the petitioner for summoning of witnesses was disallowed, is under challenge.
2. 2.The precise facts giving rise to the above titled petition are that a suit for recovery of dower Rs, thirty four thousand is sub judice before Family Court Poonch. During trial the said Court framed issues on point of variance between the parties and directed the respondent to produce evidence in support of her claim. The respondent in compliance of the order of the Court produced some witness to support her claim in the suit. The trial Court after closing the evidence on behalf of the respondent, directed the petitioner to adduce evidence in support of his plea on 9-7-1997 and adjourned the case to 5-8-1997. On the aforesaid date, the petitioner per order of the Court produced a witness named Muhamamd Fazal in the Court but the Court refused to record evidence of the said witness on the ground that as the petitioner did not file list of witnesses with the written statement, so under law he was not allowed to produce any witness on subsequent stage. The petitioner submitted an application in the Court and contended that the Court was quite competent to summon any person as witness provided it felt expedient to call such witnesses. The learned counsel for the petitioner submitted before the trial Court that he wanted to produce only those witnesses who were marginal witnesses of the documents already appended with the written statement. The trial Court refused to admit the plea of the counsel for the petitioner and disallowed the application vide order dated 30-10-1997. The aforesaid order is now under challenged through this revision petition.
3. 3.The learned counsel for the petitioner while assailing the impugned order argued that the trial Court failed to exercise its discretion in a judicial fashion. According to learned counsel, the Court was fully competent to allow the evidence on behalf of the petitioner under section 7 of Family Court Act. The trial Court acted in a way which did not advance the ends of justice in the circumstances of the case, the learned counsel maintained. He further submitted that technicalities should not be allowed to defeat the ends of justice.
4. 4.As against this the learned counsel for the respondent while supporting the impugned order contended that the trial Court was perfectly right to disallow the application as under law, the parties were bound to file the list of the witnesses with their pleadings. No party was allowed to adduce evidence when such party failed to furnish a list of witnesses with the pleading and the trial Court committed no illegality while disallowing the evidence of the petitioner, the learned counsel submitted.
5. 5.I examined the record of the case in the light of the respective submission of the learned counsel for the parties.
6. 6.Before arriving at some conclusion, it is necessary to reproduce the relevant provisions of the law pertaining to filing of list of witnesses and a summoning the witnesses to record the statements.
7. Sections 7 and 15 of Family Courts Act are reproduced as under:-- 7"Institution of suits.--(1) Every suit before a Family Court shall be instituted by the presentation of the plaint or in such other manner and as may be prescribed.
(2) The plaint shall contain all facts relating to the dispute and shall contain a schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and brief summary of the facts to which they would depose; Provided that the parties may, with the permission of the Court, call any witness at any later stage, if the Court considers such evidence expedient in the interest of justice.
8. (3)All documents which the plaintiff intends to rely upon in respect of his claim shall be appended to the plaint.
9. (4)The plaint shall be accompanied by as many duplicate copies thereof (including the Schedule and the lists of documents referred to in subsection (3), as there are defendants in the suits, for service upon the defendant."
10. 15-Power of Family Court to summon witnesses.--(1) A Family Court may issue summons to any person to appear and give evidence, or to produce or cause the production of any document.
11. Provided that---(a) no person who is exempted from personal appearance in a Court under subsection (1) of section 133 of the Code of Civil Procedure, 1908, shall be required to appear in person;
(b) a Family Court may refuse to summon a witness or to enforce a summons already issued against a witness when, in the opinion of the Court, the attendance of the witness cannot be procured without, such delay, expense or inconvenience or in the circumstances would be unreasonable.
(2) If any person to whom a Family Court has issued summons to appear and give evidence or to cause the production of any document before it, wilfully disobeys such summons, the Family Court may take cognizance of such disobedience, and after giving such person an opportunity to explain, sentence him to fine not exceeding one hundred rupees."
12. From the perusal of the aforesaid provisions of law, it becomes abundantly clear that the Court is quite competent to summon any person as witness despite the fact that any party failed to file the list of witnesses with the pleadings. The only thing which the court is to see as to whether it is expedient to call a person as witness. The purpose behind this particular piece or legislation appears to enable the Court to dispose of a family matter as early as possible and further to excuse any possibility of fake and afterthought evidence.
13. 4.In the instant case, the petitioner wants to produce only those witnesses whose names and particulars are already supplied to the Court in shape of documents appended with the written statement. Muhammad Fazal and Muhammad Kabeer Hussain are the marginal witnesses of the documents appended with the written statement. Their full particulars are also given on the aforesaid documents. The trial Court did not face any difficulty to summon them. It is pertinent to note here that the trial Court in fact ordered the petitioner to produce evidence vide its order dated 9-7-1997 and the petitioner in compliance of the order of the Court produce Muhammad Fazal as his witness on the subsequent date but the Court refused to record the statement of the said witness. The above-referred provisions of Family Court Act empower the Court to summon the witnesses at a later stage and in fact the trial Court did so but later on, on a subsequent date refused to allow the evidence on the part of the petitioner. It was not in the interest of justice to do so. When law allows the Court to pass some order in the direction to advance the ends of justice, it should response positively. It is not sufficient to do justice but one would feel that justice is being done.
5. Keeping in view the pleadings of the parties and issues arising out of pleading, it is felt expedient to summon Mr. Fazal and Kabeer Hussain, marginal witnesses of the documents Exhs. DA and DB in the Court to record their statement about the genuiness of the aforesaid documents. Their names and particulars are already on file of the trial Court.
14. In the light of above observations the order dated 30-10-1997 is set aside and the Trial Court is directed to record the statements of the abovementioned witnesses. The revision petition stands accepted.