2013 CLC 82 (PLP)

RAUF AHMAD SHEIKH, J.

The petitioner has assailed the vires of order dated 12.11.2007 passed by the learned Civil Judge, Pind Dadan Khan, whereby the evidence of Arshad Mahmood Kamal P.W. was recorded and the right to cross-examine the witness was closed and the judgment dated 8-7-2008, whereby a revision petition filed by him was dismissed.

2. The facts, in brief, as emerge on perusal of the record are that the plaintiff/respondent No.1 filed a suit for possession through pre-emption against the petitioner/defendant. This suit was fixed for evidence for 20-11-2007.On 10-10-2007 the respondent/defendant moved an application with the contention that Arshad Mahmood Kamal P.W. was scheduled to leave for Dubai on 2-11-2007, where he works to earn his livelihood so his evidence be recorded by fixing the suit for an early date. The notice was issued to the petitioner for 18-10-2007, 25-10-2007, 30-10-2007, 2-1-2007, 8-11-2007 and 12-11-2007. The learned trial Court held that the service was effected through Kh. Nasir Khurshid, Advocate, learned counsel for the petitioner, who contended that the petitioner was living in a foreign country so his personal service be effected but the `Wakalatnama' of the counsel was intact so the service was complete. It was also observed that the registered cover envelopes were received back with the report that the petitioner was in foreign country and the members of the family had refused to accept the same. Thereafter the learned trial Court passed an order that statement of the witness be recorded as he had shown his confirmed Air ticket for Dubai for 15-11-2007 and proceeded on to close the right of cross-examination as no one appeared on behalf of the petitioner.

3. Learned counsel for the petitioner has contended that the learned trial Court could have not changed the date of hearing fixed by it; that the petitioner was not served in accordance with law so he had no knowledge about the change of the date of hearing; that the right of cross-examination could have not been taken away in a suit, where valuable rights of the parties qua immovable property are at stake and that the illegality committed by the learned trial court was not rectified by the learned Additional District Judge so both the courts have failed to perform their duties in accordance with law.

4. Learned counsel for respondent No.1 has vehemently opposed the petition. It is contended that the witness was scheduled to go abroad on 2-11-2007 so the application was moved under compulsion but the petitioner wilfully avoided the personal service and the learned counsel was duly served but he raised a flimsy objection that the petitioner be served in person although the "Wakalatnama" was intact. It is contended that the service through counsel is complete and as such the learned trial Court on production of the O.K. ticket of the witness recorded his evidence in accordance with law.

5. Order XVIII, Rule 16, C.P.C. clearly provides that if a witness is about to leave the jurisdiction of the court or there is any other sufficient cause available, the court may record the evidence of such witness immediately. In this case, the application was moved well in time and in spite of repeated notices the personal service could not be effected but the same was effected through the learned counsel for the petitioner. The 'Wakalatnama' of the counsel for the petitioner was intact so he could have not insisted on petitioner's personal service. Under Order III, Rule 5, C.P.C., the process of the court can be served on the party through the Pleader. The Pleader in whose favour the `Wakalatnama' is duly executed by the part cannot refuse to accept the service on the ground that the personal service be ensured. In these circumstances, the learned trial Court rightly observed that the service was complete and proceeded on to record the evidence. The petitioner had opted to remain away from the court in spite of service through counsel so the learned trial Court was left with no option but to close the right of cross-examination. The impugned order of the learned trial court and the judgment of the learned Additional District Judge do not suffer from any illegality or infirmity. The writ petition is without merits and the same is hereby dismissed. MWA/F-5/L Petition dismissed.