' Ex parte order against respondents Nos.1 and 2.
2. Learned counsel for the respondents has requested fox- the grant of adjournment since 8-6- 2004 to 30-6-2004 which is refused on the ground that already case is fixed in presence of the respondent No.2 and on the request of respondent No.2 it was adjourned to 21-6-2004.
3. Brief facts in the instant civil revision are that the petition under section 12(2) read with section 30 of the Arbitration Act to reverse the order and decree dated 6-5-1991 passed in Civil Appeal No.7 of 1991 by the Additional District Judge, Lahore, is pending on the basis of collusion and fraud. That during pendency of the aforesaid proceedings the petitioner moved an application under Order XVI, rule 7, Order XIII, rule 2 and Order XVIII, rule 17 read with section 151, C.P.C. For the grant of permission of production of additional evidence and to recall R.W.-1 for further cross-examination on the basis that some important facts in evidence having material bearing on the merits of the case had been discovered which were necessary in order to do substantial justice. This proposed evidence would further unveil the fraudulent and fictitious acts and devices of the respondents. The petitioner prayed for production of the following additional evidence to substantiate the pleas about the fraud and misrepresentation committed by the respondents:--
(i) the report of the process server dated 16-4-2003;
(ii) the certified copies of the extracts from the stamp vendors yearly register for 2001-2002, dated 13-2-2002 at. Serial Nos.38 to 50 dated 1,4, 8, 10, 18, 19, 22 September, 2001;
(iii) the certificate/affidavit of Mr. Zia- ul-Hassan Khan Oath Commissioner/Notary Public, Office at District Court Zila Kachery, Lahoie dated 23-12-2002;
(iv) summoning and examination of Mr. Abdul Khaliq Bhatti, stamp vendor, Lahore;
(v) summoning and examination of Mr. Zia-ul-Hassan Khan Oath Commissioner/Notary Public Office at District Court/Zial Katchery, Lahore;
(vi) recalling of Mr. Karamat Hussain Khan, Advocate/Oath Commissioner, office at Sessions Court, Lahore (R.W.-1) for the further cross-examination;
(vii) record keeper for the National Identity Card (NIC) Office.
The learned trial Court vide order dated 1-11-2003 partly allowed the petitioner's application to the extent of reliefs at serial Nos.2, 3, 4 and 5 and refused the remaining proposed additional evidence at serial Nos.1, 6 and 7, hence, the instant civil revision.
4. Arguments advanced by learned counsel for the petitioner are that order passed by the learned Court below are against the law and facts. The learned Court below seriously erred in law in declining the prayer of Karamat Hus'sain Khan, R.W.-1 the alleged special attorney for further cross- examination and summoning of the record keeper of the NIC office and these were the material prayers for production of additional evidence. The decline of the learned Court to recall of R.W-1 and summoning the record keeper of NIC office are fatal to the petitioner's acknowledged rights and cause of action and these prayers are declined without 'assigning any lawful reasons. The absence of grant of these prayers will injure the acknowledged and recognized rights and cause of action of the application in question. The denial of withholding of relief is a denial of justice and failure to exercise jurisdiction. Since the discharge of issues is on the .Petitioner, the petitioner has to bring on record sufficient proof to unveil the truth that respondent No.1 Naveed Ahmad is not existing and only fraud and misrepresentation is played in respect of a person, who is non-existing, he placed reliance on "Muhammad Bashir v. Province of Punjab" 2003 SCM R 83; "Syeda Tahira Begum v. Syed Akram Ali" 2003 SCM R 29 and "Jameela Pira Bakhsh v. Appellate Authority" 2003 SCM R 1524 . Crux of the above said authorities is that if the Court requires further evidence to bring out the real factual position, which is by itself pivotal in deciding the case on merits in order to do justice between the parties, it has got the inherent jurisdiction for clarification in the ends of justice and do complete justice between the litigating parties. Technicalities should not, create. Hurdles in the way of substantial justice. The power and jurisdiction to allow production of oral and documentary evidence should be generously, liberally and judicially exercised by the Court.
5. I have heard the learned counsel for tke petitioner and perused the record. The stance of the respondents in the lower Court was that the application given by the petitioner under Orders XVI, rule 7, Order XIII, rule 2 and Order XVIII, rule 17, C.P.C. Is futile exercise which intend to a chapter closed in order to fill the lacuna and to put the real matter off the record. The parties completed their evidence and at this stage no evidence whatsoever leading towards opening of another chapter can be entertained and therefore, the application is groundless. Applicant has fully cross- examined the said attorney from every angle. The petitioner/ applicant has not appeared before the Court on even single occasion. She may not have attorned any person. The attorney on her behalf might be misrepresenting for his personal gains. Earlier applicant's petition on the subject stood dismissed and repetition is not permitted by law. Application under reply is liable to be dismissed and the respondents denied all the allegations levelled by the petitioner in his application before the learned trial Court and requested for rejection of the same.
6. The learned Court below observed that from the perusal of case the application under section 12(2), C.P.C. Is pending adjudication on the premises that Naveed Ahmad respondent No.1 is non- existing person. The impugned decree dated 6-5-1991 was procured fraudulently. The application for summoning the above said Naveed Ahmad in person was turned down by my learned predecessor on 16-11-2002 and the order had attained finality. The parties had led their evidence.
The respondent No.1 had led his evidence through his special attorney Mr. Karamat Hussain, Advocate Notary Public/Oath Commissioner, Sessions Court, Lahore who has also submitted his attorney Exh.R.W.- 1/1. Respondent No.1 has appeared. According to the petitioner the above said fact has come to his knowledge after the evidence. Therefore, in the interest of justice and fair play this petition is allowed to the extent that the petitioner has a right to produce stamp vender Abdul Khaliq Bhatti and also Notary Public Mr. Zia-ulHassan Khan as a witness alongwith their record. The respondent will have a right to rebut the evidence of the above said witnesses. To the extent summoning of process server for his report the application is without any justification. The issues which are formulated on the divergent pleadings of the parties are as follows:-
(i) Whether the application has been filed by the petitioner with mala fide intention to harass and intimidate the respondent? OPR.
(ii) Whether the application is not maintainable and having been filed involving the provisions of two different codified law? OPR.
(iii) Whether this Court can assume two different jurisdiction at one sitting? OPR.
(iv) Whether this Court lacks jurisdiction to entertain this petition having multiple features? OPR.
(v) Whether application under section 12(2), C.P.C. Is not maintainable as the matter in hand has borne out of arbitration proceedings? OPR
(vi) Whether the application, is barred by limitation as far as section 30 is concerned?
(vii) Whether the impugned decree dated 6-5-1991 making award rule of Court has been obtained by fraud practised on Court by the respondent? OPA.
(viii) Whether there was connivance and collusion with each other by respondents Nos.1 to 5 in filing spurious award dated 18-4-1990? OPA.
(ix) Whether section 12(2) C.P.C. Is only applicable to the cases coming under C.P.C. And not to the cases covered by Arbitration Act? OPR.
(x) Relief.
' Issues Nos.7 and 8 are very material and onus is on the applicant and the learned trial Court has come to the conclusion. That application under section 12(2), C.P.C. Is pending adjudication on die facts that Naveed Ahmad respondent No.1 is non-existing perSon and the impugned decree dated 6-5-1991 is procured fraudulently and the petitioner has a right to challenge the validity and authenticity of the same and partly allowed the application.
7. The law on the subject is settled that all the procedures are basically meant for advancement of substantial justice and if the Court requires further evidence to bring out the real factual position under its inherent jurisdiction under section 151. C.P.C. In order to do justice between the parties then it must admit such evidence for clarification in the Ands of justice and the entire body of procedural law is meant for the advancement of the cause of justice and to unveil the truth to do complete justice and especially in a petition under section 12(2), C.P.C., which is moved on the allegation that fraud and misrepresentation has been exercised. The Court is under the bounden duty of law to allow such evidence for just decision of the case and advancement of cause of justice.
8. Therefore, I accept the revision petition, set aside the- order in respect of declining the evidence on serials Nos.1, 6 and 7.