1988 PLP 803 (MLD)

This petition under section 115, C.P.C. calls in question the validity of the order dated 20‑2‑1983 of the learned Senior Civil Judge, Okara whereby he dismissed petitioner's application under Order XVI, Rule 1, C.P.C. for summoning his witnesses to prove the preliminary issues framed in the suit.

2. The facts of the case are that in the year 1959 the petitioner instituted a suit. The suit remained pending and could not be decided for various reasons which need no mention for the disposal of this petition. On 20‑12‑1982 the learned trial Court framed four preliminary issues in the suit. The petitioner/plaintiff could not file application for summoning witnesses to prove the preliminary issues because the ownership and possession of Sutlej Cotton Mills Ltd. Okara changed from one hand to other. Ultimately on 12‑5‑1981 the Mills were sold in favour of Mr. Javaid A. Zia and its possession was also delivered to him. According to the plaintiff he could not submit the list within the statutory time because the witnesses mentioned in the list had left the service of the Mills due to change in administration. It was also stated that the help of the Court for summoning them to prove the case was essential for just decision of the case. The learned Senior Civil Judge, however, dismissed plaintiff's application, holding that the plaintiff did not disclose sufficient cause for not summoning the witnesses within reasonable time and observed that he could adopt other legal measures to prove preliminary issues. Hence this petition.

3. Learned counsel for petitioner contended that in order to prove preliminary issues framed in the case the evidence of the witnesses mentioned in the application was essential and none of them was prepared to appear in the Court in support of plaintiff's case unless they were summoned through the process of the Court. It was contended that the discretion exercised by the learned trial Court in refusing to summon the witnesses was not based on judicial principles and the impugned order merited interference in revisional jurisdiction of this Court.

4. Learned counsel for respondents opposed this petition and stated that the order passed by the learned trial Court in refusing to summon the witnesses suffered from no illegality and called for no interference in revisional jurisdiction of this Court. It was stated that there was no reasonable explanation given by the petitioner as to why he failed to summon the witnesses after a lapse of three years. The plaintiff conducted himself with gross negligence and the discretion exercised by the learned trial Court was in accordance with law.

5. I have considered the contentions raised by the learned counsel for the parties and have taken into consideration the preliminary issues framed in the suit. The decision of the suit is hanging fire since 1959 and for no reason delay in decision was called for in the matter. The petitioner himself opted not to summon the witnesses through the aid of the trial Court for a period of three years when he was required to furnish the list within seven days after the issues were settled in the suit. The change in administration had taken place on 12‑5 1981 but the application was filed on 31‑1‑1983. This would show that the petitioner was not keen in summoning the witnesses through the process of Court even after the change in administration of the Mills had taken place for a period of about a year and nine months. The petitioner failed to show reasonable cause for non‑summoning the witnesses to prove preliminary issues within reasonable time and the learned trial Court acted within the limits of judicial discretion in refusing to summon them. I find no illegality or irregularity in the impugned order passed by the learned Senior Civil Judge, Okara and dismiss this petition with no order as to costs. M.Y.H./2733/L Petition dismissed