PLJ 2011 Lahore 164
Present: Saif-ur-Rehman, J.
MUSHTAQ AHMAD--Petitioner
versus
GHULAM RASOOL and another--Respondents
C.R. No. 1807 of 2007, decided on 20.4.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. XVI, R-1(3)--O.XVII, R. 2--Civil revision--Powers of Court to issue summons on an application--Right to produce evidence was closed--Witnesses who was got summoned through the Court, were present in the Court, who could not be recorded because Presiding Officer was on leave--Third witness was not present was not sufficient to grant adjournment and if at all adjournment was being granted by trial Court--Case was adjourned by shifting the total burden on the shoulders of Petitioner to produce evidence on his own responsibility--Validity--Once discretion had been exercised by trial Court waiving of the restriction placed not to issue the summons if the needful was not done in accordance with law, then the Court was under legal obligation to examine as to whether service on summons had been affected in accordance with the provision in O. V, R, 8, CPC--Petitioner had been producing his witnesses on different dates and the summoned witnesses had also been appearing service had been repeatedly affected in person, therefore, conduct of the petitioner was not contumacious--Cases were remanded. [Pp. 168 & 169] A & C
Civil Procedure Code, 1908 (V of 1908)--
----O. XVI, R. 1(3)--List of witnesses furnished by the petitioner within prescribed time--Interest of justice--Since Court itself had waived of the conditions prescribed under O. 16, Rule 1(3), CPC, therefore, in the interest of justice, one more opportunity should have been allowed to the petitioner by trial Court to get the summons served on the summoned witnesses. [P. 169] B
PLD 1980 SC 129, PLD 1990 SC 1192, PLD 1991 SC 1109, PLD 1988 Lah. 183, PLD 1994 Lah. 37 & 1998 CLC 610, rel.
Sh. Naveed Sheharyar, Advocate for Petitioner.
Qazi Khurshid Alam, Advocate for Respondents.
Date of hearing: 20.4.2009.
Order
Since same questions of law and fact are involved in Civil Revisions No. 1807, 1867 and 1868 of 2007, hence, the same are being decided through this single order.
2. Three pre-emption suits Bearing Nos. 13, 14 & 15 of 2007 were filed by the petitioner, which were resisted by the respondents. Issues were framed and cases were adjourned repeatedly for evidence of the petitioner. He examined two witnesses in each case. However, on 17.12.2006 evidence of the petitioner was not present, therefore, his right to produce evidence was closed under Order XVII Rule 2 CPC and his suits were dismissed.
3. Learned counsel for the petitioner submitted that since on the date preceding the date on which impugned orders were passed, the cases were adjourned on the request of the respondents, therefore, this penal provision could not be applied. It was next contended that two witnesses of the petitioner were present on the previous date. Affidavit of the learned counsel for the petitioner to this effect had been filed which stood unrebutted on record. Third witness was got summoned by the petitioner about whom report was received that he was not available. It, therefore, was duty of the learned trial Court to coerce appearance of that witness. Evidence, therefore, could not be closed for this reason as well. Reliance was placed on the authorities reported in PLD 1980 SC 129, PLD 1990 SC 1192, PLD 1991 SC 1109, PLD 1988 Lahore 183, PLD 1994 Lahore 37 and 1998 CLC 610.
4. Conversely, learned counsel for the respondents submitted that issues in these suits were framed on 20-03-2001. From the very beginning petitioner had been using delaying tactics. Through repeated adjournments he was allowed opportunities for five years but he failed to produce evidence. The address of the witness sought to be summoned through Court had been differently given in the list of witnesses by repeating name of same witness twice. When it had been directed by the learned trial Court that the petitioners would produce his witnesses on his own responsibility, it was his obligation to get service affected and to produce them in the Court but he did not deposit the process fee in time violating the provisions laid down in Order XVII Rule 1(3) CPC and the petitioner had not paid the costs as well which were imposed upon him from time to time. His evidence, therefore, was rightly closed by the learned trial Court. Reliance was placed on the authorities reported as 1994 CLC 1007, AIR 1927 Lahore 281, 2001 MLD 1603 and 2003 CLJ 80.
5. I have considered the respective contentions of the parties in the light of relevant law.
6. A look through the record indicates that on 24-05-2003 witnesses of the petitioner, including Sajjad Ahmad, who was got summoned through the Court, were present in the Court, who could not be recorded because Presiding Officer was on leave. On the next date i.e. 23-07-2003, marginal note on the order sheet indicates that witness was again served, however, without mentioning the fact as to whether witnesses were present or not, the case was adjourned by the learned trial Court on the request without specifying as to who had made request for adjournment. On 01-12-2003 the marginal note again indicates that summoned witnesses had been served. The case was again mechanically adjourned as was done on the previous date. Same was the position on 10-04-2004 when further proceedings could not be conducted because the learned Judge had gone to Central Jail, Mianwali. On 10.06.2004 examination-in-chief of two witnesses were recorded, however, the case was adjourned on the request of learned counsel for the respondents who was busy in some function of the bar. It shall not be out of place to mention here that in the margin there are signatures of three persons who presumably were the witnesses. Later on, however, the evidence could not be produced on a few dates. Ultimately on 17.10.2008 following order was passed by the learned trial Court:--
"Present:-- Counsel for the parties.
Order:
Alamgir and Mushtaq Ahmad PWs are present but the other witness of notice of Talab-e-Ishhad is not present, who is being summoned through process of the Court. Learned counsel for the defendant has objected to recording of partial evidence as it would disclose the cross-examination. He prays that the evidence of the plaintiff be closed because the said witness is not present. The second witness of Talab-e-Ishhad is being summoned through process of Court and the plaintiff has deposited process fee. In the name of this witness summon has not been returned back. As the witness is being summoned through process of the Court so to this extent evidence of the plaintiff cannot be closed whereas the remaining witnesses are present. In these circumstances, in the interest of justice, absolutely last opportunity is granted to the plaintiff. It is clarified that the plaintiff would get service of the summoned witness. Now to come up for evidence of the plaintiff on 07.12.2006.
7. Though it was recorded in the orders that summons had not been received back in the learned trial Court yet from the certified copies of the documents annexed with the civil revisions it appears that notices had been returned and the process server had failed to locate the witness.
8. It may further be added that simply the ground that third witness was not present, was not sufficient to grant adjournment and if at all adjournment was being granted by the learned trial Court, the two witnesses namely Alamgir and Sajjad Hussain must have been bound down to appear on the next date. This was not done by the learned trial Court and the case was adjourned by shifting the total burden on the shoulders of petitioner to produce evidence on his own responsibility. For the aforesaid lapse of the learned trial Court adjournment dated 17.10.2006 is treated to be an adjournment on the request of respondents, hence, in the light of case law reported in PLD 1980 SC 129, PLD 1990 SC 1192, PLD 1991 SC 1109, PLD 1988 Lahore 183, PLD 1994 Lahore 37 and 1998 CLC 610 penal provisions of Order XVII could not be applied to the cases in hand.
9. Following part of the findings of the learned trial Court made in the impugned order are also worth consideration:
".....If a PW is to be summoned through process of the Court under Order XVI Rule 8 CPC it was imperative for the plaintiff to apply for issuance of summons not later than 14 days prior to the date fixed in the suit as envisaged in proviso to Order XVI Rule 1(3) CPC. The plaintiff applied for summons of this witness on 30-11-2006 whereas the date fixed in the suit was 07-12-2006 meaning thereby the plaintiff has no interest to pursue his case......"
10. It shall be appropriate to have a look through Order XVI Rule 1 CPC, which reads as under:--
"1. Summons to attend to give evidence or producer document.
(1) Not later than seven days after the settlement of issues, the parties shall present in Court a (certificate of readiness to produce evidence, along with a) list of witnesses whom they propose to call (or produce) either to give evidence or to produce documents.
(2) A party shall not be permitted to call (or produce) witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; and if the Court grants such permission, it shall record reasons for so doing.
(3) On application to the Court or such officer as it appoints in this behalf, the parties may obtain summons for person whose attendance is required in Court:
Provided that no summons shall be issued for service on a person under Rule 8 unless an application in that behalf is made not later than fourteen days prior to the date fixed for the hearing of the suit and the necessary expenses for the summoning of such person are deposited."
Rule 8 of the said Order reads as under:
"8. Service of summons by Court:--
Every summons under this Order, not being a summons made over to a party for service under Rule 7A of this Order, shall be served as nearly as may be in the same manner as a summons to a defendant, and the rules in Order V as to proof of service shall apply thereto."
Proviso to Order XVI Rule 1(3) CPC puts an embargo on the powers of Court to issue summons on an application in this behalf if not made within the period prescribed therein. However, once discretion had been exercised by the learned trial Court waiving of the restrictions placed not to issue the summons if the needful was not done in accordance with the above quoted law, then the Court was under legal obligation to examine as to whether service on summons had been affected in accordance with provisions contained in Order V Rule 8 CPC.
11. It appears that the petitioner did make effort to trace his witness and according to process server he was not available at the given address.
12. Since name of this witness was mentioned in the list of witnesses duly furnished by the petitioner within prescribed time and since Court itself had waived of the conditions prescribed under Order XVI Rule 1(3) CPC, therefore, in the interest of justice, one more opportunity should have been allowed to the petitioner by the learned trial Court to get the summons served on the summoned witnesses.
13. Why was it necessary is because of the fact that the record indicates that the petitioner had been producing his witnesses on different dates and the summoned witnesses had also been appearing/service had been repeatedly affected in person, therefore, conduct of the petitioner was not contumacious. For the delay caused the respondents could be compensated by awarding costs.
14. For the foregoing reasons, these revisions are accepted and the impugned judgments and decrees are set aside. All the three suits are remanded to the learned trial Court with direction to allow 2 or 3 opportunities to the petitioner to produce evidence subject to payment of costs of Rs. 5000/- in each suit. No order as to costs.
(R.A.) Case remanded.
Present: Saif-ur-Rehman, J.
MUSHTAQ AHMAD--Petitioner
versus
GHULAM RASOOL and another--Respondents
C.R. No. 1807 of 2007, decided on 20.4.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. XVI, R-1(3)--O.XVII, R. 2--Civil revision--Powers of Court to issue summons on an application--Right to produce evidence was closed--Witnesses who was got summoned through the Court, were present in the Court, who could not be recorded because Presiding Officer was on leave--Third witness was not present was not sufficient to grant adjournment and if at all adjournment was being granted by trial Court--Case was adjourned by shifting the total burden on the shoulders of Petitioner to produce evidence on his own responsibility--Validity--Once discretion had been exercised by trial Court waiving of the restriction placed not to issue the summons if the needful was not done in accordance with law, then the Court was under legal obligation to examine as to whether service on summons had been affected in accordance with the provision in O. V, R, 8, CPC--Petitioner had been producing his witnesses on different dates and the summoned witnesses had also been appearing service had been repeatedly affected in person, therefore, conduct of the petitioner was not contumacious--Cases were remanded. [Pp. 168 & 169] A & C
Civil Procedure Code, 1908 (V of 1908)--
----O. XVI, R. 1(3)--List of witnesses furnished by the petitioner within prescribed time--Interest of justice--Since Court itself had waived of the conditions prescribed under O. 16, Rule 1(3), CPC, therefore, in the interest of justice, one more opportunity should have been allowed to the petitioner by trial Court to get the summons served on the summoned witnesses. [P. 169] B
PLD 1980 SC 129, PLD 1990 SC 1192, PLD 1991 SC 1109, PLD 1988 Lah. 183, PLD 1994 Lah. 37 & 1998 CLC 610, rel.
Sh. Naveed Sheharyar, Advocate for Petitioner.
Qazi Khurshid Alam, Advocate for Respondents.
Date of hearing: 20.4.2009.
Order
Since same questions of law and fact are involved in Civil Revisions No. 1807, 1867 and 1868 of 2007, hence, the same are being decided through this single order.
2. Three pre-emption suits Bearing Nos. 13, 14 & 15 of 2007 were filed by the petitioner, which were resisted by the respondents. Issues were framed and cases were adjourned repeatedly for evidence of the petitioner. He examined two witnesses in each case. However, on 17.12.2006 evidence of the petitioner was not present, therefore, his right to produce evidence was closed under Order XVII Rule 2 CPC and his suits were dismissed.
3. Learned counsel for the petitioner submitted that since on the date preceding the date on which impugned orders were passed, the cases were adjourned on the request of the respondents, therefore, this penal provision could not be applied. It was next contended that two witnesses of the petitioner were present on the previous date. Affidavit of the learned counsel for the petitioner to this effect had been filed which stood unrebutted on record. Third witness was got summoned by the petitioner about whom report was received that he was not available. It, therefore, was duty of the learned trial Court to coerce appearance of that witness. Evidence, therefore, could not be closed for this reason as well. Reliance was placed on the authorities reported in PLD 1980 SC 129, PLD 1990 SC 1192, PLD 1991 SC 1109, PLD 1988 Lahore 183, PLD 1994 Lahore 37 and 1998 CLC 610.
4. Conversely, learned counsel for the respondents submitted that issues in these suits were framed on 20-03-2001. From the very beginning petitioner had been using delaying tactics. Through repeated adjournments he was allowed opportunities for five years but he failed to produce evidence. The address of the witness sought to be summoned through Court had been differently given in the list of witnesses by repeating name of same witness twice. When it had been directed by the learned trial Court that the petitioners would produce his witnesses on his own responsibility, it was his obligation to get service affected and to produce them in the Court but he did not deposit the process fee in time violating the provisions laid down in Order XVII Rule 1(3) CPC and the petitioner had not paid the costs as well which were imposed upon him from time to time. His evidence, therefore, was rightly closed by the learned trial Court. Reliance was placed on the authorities reported as 1994 CLC 1007, AIR 1927 Lahore 281, 2001 MLD 1603 and 2003 CLJ 80.
5. I have considered the respective contentions of the parties in the light of relevant law.
6. A look through the record indicates that on 24-05-2003 witnesses of the petitioner, including Sajjad Ahmad, who was got summoned through the Court, were present in the Court, who could not be recorded because Presiding Officer was on leave. On the next date i.e. 23-07-2003, marginal note on the order sheet indicates that witness was again served, however, without mentioning the fact as to whether witnesses were present or not, the case was adjourned by the learned trial Court on the request without specifying as to who had made request for adjournment. On 01-12-2003 the marginal note again indicates that summoned witnesses had been served. The case was again mechanically adjourned as was done on the previous date. Same was the position on 10-04-2004 when further proceedings could not be conducted because the learned Judge had gone to Central Jail, Mianwali. On 10.06.2004 examination-in-chief of two witnesses were recorded, however, the case was adjourned on the request of learned counsel for the respondents who was busy in some function of the bar. It shall not be out of place to mention here that in the margin there are signatures of three persons who presumably were the witnesses. Later on, however, the evidence could not be produced on a few dates. Ultimately on 17.10.2008 following order was passed by the learned trial Court:--
"Present:-- Counsel for the parties.
Order:
Alamgir and Mushtaq Ahmad PWs are present but the other witness of notice of Talab-e-Ishhad is not present, who is being summoned through process of the Court. Learned counsel for the defendant has objected to recording of partial evidence as it would disclose the cross-examination. He prays that the evidence of the plaintiff be closed because the said witness is not present. The second witness of Talab-e-Ishhad is being summoned through process of Court and the plaintiff has deposited process fee. In the name of this witness summon has not been returned back. As the witness is being summoned through process of the Court so to this extent evidence of the plaintiff cannot be closed whereas the remaining witnesses are present. In these circumstances, in the interest of justice, absolutely last opportunity is granted to the plaintiff. It is clarified that the plaintiff would get service of the summoned witness. Now to come up for evidence of the plaintiff on 07.12.2006.
7. Though it was recorded in the orders that summons had not been received back in the learned trial Court yet from the certified copies of the documents annexed with the civil revisions it appears that notices had been returned and the process server had failed to locate the witness.
8. It may further be added that simply the ground that third witness was not present, was not sufficient to grant adjournment and if at all adjournment was being granted by the learned trial Court, the two witnesses namely Alamgir and Sajjad Hussain must have been bound down to appear on the next date. This was not done by the learned trial Court and the case was adjourned by shifting the total burden on the shoulders of petitioner to produce evidence on his own responsibility. For the aforesaid lapse of the learned trial Court adjournment dated 17.10.2006 is treated to be an adjournment on the request of respondents, hence, in the light of case law reported in PLD 1980 SC 129, PLD 1990 SC 1192, PLD 1991 SC 1109, PLD 1988 Lahore 183, PLD 1994 Lahore 37 and 1998 CLC 610 penal provisions of Order XVII could not be applied to the cases in hand.
9. Following part of the findings of the learned trial Court made in the impugned order are also worth consideration:
".....If a PW is to be summoned through process of the Court under Order XVI Rule 8 CPC it was imperative for the plaintiff to apply for issuance of summons not later than 14 days prior to the date fixed in the suit as envisaged in proviso to Order XVI Rule 1(3) CPC. The plaintiff applied for summons of this witness on 30-11-2006 whereas the date fixed in the suit was 07-12-2006 meaning thereby the plaintiff has no interest to pursue his case......"
10. It shall be appropriate to have a look through Order XVI Rule 1 CPC, which reads as under:--
"1. Summons to attend to give evidence or producer document.
(1) Not later than seven days after the settlement of issues, the parties shall present in Court a (certificate of readiness to produce evidence, along with a) list of witnesses whom they propose to call (or produce) either to give evidence or to produce documents.
(2) A party shall not be permitted to call (or produce) witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; and if the Court grants such permission, it shall record reasons for so doing.
(3) On application to the Court or such officer as it appoints in this behalf, the parties may obtain summons for person whose attendance is required in Court:
Provided that no summons shall be issued for service on a person under Rule 8 unless an application in that behalf is made not later than fourteen days prior to the date fixed for the hearing of the suit and the necessary expenses for the summoning of such person are deposited."
Rule 8 of the said Order reads as under:
"8. Service of summons by Court:--
Every summons under this Order, not being a summons made over to a party for service under Rule 7A of this Order, shall be served as nearly as may be in the same manner as a summons to a defendant, and the rules in Order V as to proof of service shall apply thereto."
Proviso to Order XVI Rule 1(3) CPC puts an embargo on the powers of Court to issue summons on an application in this behalf if not made within the period prescribed therein. However, once discretion had been exercised by the learned trial Court waiving of the restrictions placed not to issue the summons if the needful was not done in accordance with the above quoted law, then the Court was under legal obligation to examine as to whether service on summons had been affected in accordance with provisions contained in Order V Rule 8 CPC.
11. It appears that the petitioner did make effort to trace his witness and according to process server he was not available at the given address.
12. Since name of this witness was mentioned in the list of witnesses duly furnished by the petitioner within prescribed time and since Court itself had waived of the conditions prescribed under Order XVI Rule 1(3) CPC, therefore, in the interest of justice, one more opportunity should have been allowed to the petitioner by the learned trial Court to get the summons served on the summoned witnesses.
13. Why was it necessary is because of the fact that the record indicates that the petitioner had been producing his witnesses on different dates and the summoned witnesses had also been appearing/service had been repeatedly affected in person, therefore, conduct of the petitioner was not contumacious. For the delay caused the respondents could be compensated by awarding costs.
14. For the foregoing reasons, these revisions are accepted and the impugned judgments and decrees are set aside. All the three suits are remanded to the learned trial Court with direction to allow 2 or 3 opportunities to the petitioner to produce evidence subject to payment of costs of Rs. 5000/- in each suit. No order as to costs.
(R.A.) Case remanded.
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