The grievance made in this civil revision by the petitioner is that the evidence of the petitioner was closed by the learned trial Judge without any legal or otherwise justifiable ground. It appears that the can had come before the learned Civil Judge on transfer. Attendance of the parties was completed on 25-11-1971, when it was directed that the remaining evidence of the parties was to be recorded on 18-1-1972. The petitioner was to adduce the evidence. The order dated 18-1-1972 shows that in presence of the counsel for both the parties' it was noted that the petitioner had not deposited the diet money for the witnesses, therefore, subject to payment of Re. 10 as costs, further opportunity was afforded with fresh direction that the diet money was to be deposited within two days and then witnesses were to be summoned for 15-3-1971. On the adjourned date, i. e., 15-3-1972, when the impugned order was passed the learned Judge, after noting the attendance of the counsel for both the parties, observed that the process fee for summoning of the witnesses had not been deposited nor any witness had been produced from the petitioner's side. Accordingly order was passed closing the petitioner's evidence. The case was adjourned for arguments to 18-4-1972.
No further proceedings could take place before the learned trial Judge because they were stayed by this Court.
2. Learned counsel for the petitioner has produced two receipts showing the deposit of diet money on behalf of the petitioner on 12-11-1970 and the deposit of process fee for summoning of the two witnesses on 27-11-1971. It has also been checked from the original record received from the trial Court that the memo of process fee ---FARAD TALBANA---was submitted on behalf of the petitioner with requisite court-fee for summoning the two witnesses, namely, Mian Muhammad Akram Kardar and Malik Ghulam Jilani on 27-11-1971, for 18- 1-1971. The receipt dated 27-11-1971 whereupon the words ` TALBANA WASOOL PAYA' with initials and date (27-11-71) appear against column ' TALBANA MALIATI'. The date mentioned in the receipt for next hearing is 18-1-1972.
It is agreed that if the process fee was deposited for 18-1-1972 and the same had not been consumed by summoning the witnesses, it would have remained available in the account of the petitioner, for summoning the witnesses for the next hearing, i. e., 15-3..972. A fresh deposit was not necessary.
Learned counsel states that on the day that the impugned order (15-3-1972) was passed the receipt for submission of process fee was shown to the learned Judge. Notwithstanding the same, the impugned order closing the evidence was passed.
It appears that the learned Judge was not aware of the rule and practice that the process fee not consumed, was to be adjusted in the account o the petitioner and the witnesses were to be summoned on the basis of the same unconsumed process fee. That being so the order passed on 15-3-1972 clearly was illegal. The evidence should not have been closed for so-called non-deposit of process fee. As the order was not passed on account of so-called non-deposit of the diet money, therefore, it is not necessary to deal with the question as to whether the same had been deposited ride receipt dated 12-11-1970. Be that as it may, this aspect of the case was considered by the learned Judge on 18-1-1972 and he had permitted the petitioner to summon the witnesses again on payment of Rs. 10 a costs.
3. Looked at from whatever angle, the order dated 15-3-1972, whereby the evidence of the petitioner was closed is not maintainable. The learned Judge exercised his jurisdiction illegally. The said order is accordingly set aside.
4. Both the learned counsel agree that the case would continue from the stage of evidence of the petitioner as it was on 15-3-1972. Both the learned counsel realise that it needs to be disposed of expeditiously. Learned counsel for the respondent has pointed out that under the amended law the petitioner is required under Order XVI, rule 7-A, C. P. C. To obtain the summons dasti for personal service on the witnesses. Learned counsel for the petitioner has explained that one of the witnesses is a Government servant and that personal service through dash summons might be difficult He however, agrees that if personal service is directed, with the help of the civil Court, he would obtain the summons dasti. The request is reasonable. Let the petitioner obtain the summons dasti for personal service on his two witnesses with the help of the process-server of the civil Court.
5. Before closing this order, it needs to be mentioned that the learned counsel for the respondent, when faced with the afore-discussed position with regard to the order dated 15-3-1972 contended that the learned trial Judge had illegally permitted the petitioner to produce the aforementioned two witnesses on 10-3-1971, as also on an earlier date; because according to the learned counsel, their names were not mentioned in the list of witnesses submitted from the side of the petitioner.
His reliance is on Order XVI (1) (proviso) added by the Lahore High Court amendment. It is not denied that the learned trial Judge could permit the examination of witnesses not B mentioned in the list by specific order recording reason therein. The learned) Judge noted in the order dated 10- 3-1971 that the petitioner having already submitted the list of affirmative evidence could not include the names of the two witnesses because they were being produced in rebuttal. The provision has been fully complied with. The order was based on dictates of justice. The respondent did not challenge that order earlier. It is otherwise unexceptionable. No benefit can be given to the respondents on account of the point raised by the learned counsel.
6. With the above order and direction with regard to the summoning of the witnesses this revision petition is allowed. There shall be no order u to costs. Parts to appear before the learned trial Court on 19-12-1977.
7. Two receipts produced by the learned counsel for the petitioner, one regarding the diet money and the other for process fee have been retained on the file of this revision petition.