2009 PLP 389 (YLR)

GULZAR AHMED, J.

By this application, defendant No.1 has sought an order restraining the Commissioner from summoning its Managing Director with alternative prayer that if summons is already issued, the same may be set aside. The plaintiff has filed counter affidavit. I have heard learned counsel for the parties. It is contended by learned counsel for defendants that the plaintiff is summoning the Managing Director of defendant No.1 to appear and give evidence as to his signature on written, statement on behalf of defendant No.1. He states that in terms of Article 18 of Qanoon-e-Shahadat, the evidence has to be of facts and issues and relevant facts. He states that so far written statement of defendant No.1 is concerned, the same is not being pressed by it and even defendant No.1 will not lead any evidence-and inside may be closed. He states that the defendant No. 1 is one of the companies of Attock Group of Companies which has its Head Office at Islamabad and in his capacity as a country representative of the said group its Managing Director is stationed at Islamabad. He states that the only purpose to summon the MD is to cause harassment to him who otherwise is not a material witness. In reply, learned counsel for the plaintiff has submitted, that the defendant No. 1 has filed its written statement which is signed by its MD and that he has been summoned for the purpose of verification of his signatures on written statement and there is no law on the basis of which written statement could be taken out of consideration. He has further submitted that the written statement has not been signed by the MD of defendant No.1 but is signed by some other person and that issue No.5 in this respect has been framed. He stated that the application Itself is Incompetent as it is supported by an affidavit of an unauthorized person and that the affidavit is defective inasmuch as it does not comply with the form prescribed for the affidavits in Sindh Chief Court Rules and that summonses have already been served and matter is fixed on 25-10-2008 and the application has become infructuous. In support of his contentions, learned counsel has relied upon the cases pf Faqeer Muhammad v. Mst. Muhammad Bibi (PLD 1991 SC 590), Ahmed Khan v. Rasool Shah (PLD 1975 SC 311) and Muhammad Ayub v. Mst. Naseem Akhter (2003 MLD 1349). In reply Mr. Bajwa has argued that even if the summonses have been served, the alternative prayer in the application may be considered and that compliance of rule 2 of Order 16,

C.P.C. has not been made inasmuch as expenses of witnesses have not been deposited in Court. During the course of hearing Mr. Bajwa has filed a photocopy of resolution authorizing Jamil Ahmed Khan to act as legal representative of defendant No.1 in respect of court cases. A copy of such resolution was also supplied to Mr. Agha Faqueer Muhammad who has stated that the resolution also uses the term `nominee' and therefore, it is invalid. The defendant No.1 has filed its written statement which is signed and verified by Shuaib A. Malik, its MD. Issue No.5 is as follows: "Whether the written statement filed by defendant No.1 being not on oath and solemn affirmation can be taken on record?" Obviously, for determining this issue, the evidence of deponent who has verified the written statement would be material inasmuch as he alone can say as to whether he had taken oath on solemn affirmation or not. The question of taking written statement on record will only be consequential and would father be a question of law and not of fact. But, before dilating upon merits of the applications, legal provision in this regard may be examined. Provision with regard to summoning of witness are- contained in sections 31 and 32 and Order XVI of C.P.C. Section 31 provides that provision of sections 26, 28 and 29 shall apply to summonses to give evidence or to produce documents and other material object. Section 32 provides that Court may compel the attendance of any person to whom summons have been issued and has laid down the mode of compelling the attendance by issuing a warrant for his arrest, attaching and selling his property, imposing the fine not exceeded to Rs.2000, ordering him to furnish security for his appearance and in default commit him to prison. It is not disputed that the MD of defendant No.1 is listed as witness of the plaintiff. In this respect Sub-rule (1) of Rule 2 of Order XVI provides that party applying for summons shall, before the summons is granted within a period to be fixed, pay into Court a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the persons summoned in passing to and from the Court in which he is required to attend and for one day's attendance. Now, while Mr. Bajwa has raised the objection of non-compliance of sub-rule (1) of Rule 2 of Order XVI, C.P.C., Mr. Agha did not make any response to it and therefore, I assume that the expenses of witness summoned were not deposited in Court before summons was granted. The summonses also show that column of the expenses amount is in blank. What is the consequence of not depositing the expenses on the summons already issued, no law has been cited by the learned counsel. The provision of sub-rule (1) of rule 2 of Order XVI as it read seems to be mandatory inasmuch as it is couched with a word `shall' before the summons is granted. Thus in my view this provision has to be strictly observed and complied with before the summons is granted for attendance of a witness. Mr. Agha has stated that there are admissions in the written statement and therefore the witness has been summoned to prove such admissions. In this regard though no issue is framed but as per Rule 6 of Order XII, C.P.C. no proof is needed to prove admission and in this regard reference may also be made to Article 113 of Qanoon-e-Shahadat, which provides that facts admitted need not be proved. In the case of Muhammad Ayub (supra) the Court has held that admission in the pleading will be binding. In the case of Ahmed Khan it is held that the admission operates as an estoppel. It is not the case of the plaintiff that the defendant No.1 is resiling from admission made in the written statement. Rather as per the statement of defendants' counsel the defendant No.1 it is not going to lead any evidence. The effect of it would be that the defendant No.1 does not rely upon the defence pleas taken in the written statement which will remain unproved but the part of admission in the written statement will remain binding upon the defendant No.1 and plaintiff may take advantage of it in any manner as it suits to him. As to the question that MD of defendant No.1 has not signed and verified the written statement, no issue on this point has been struck and therefore in my view such fact cannot be introduced at the stage of recording of evidence. As regards the defect pointed out in the affidavit filed in support of application, the only thing that has been argued in that Para. 2 of affidavit adopts the contents of application by way of brevity and it is stated that form 3 appendix-A of Sindh Chief Court Rules does not provide for adoption of contents of the other documents in affidavit for the sake of brevity. It may be noted that this objection is altogether frivolous one as in case such practice is not allowed, there will be repetition of the matter again and again which will only burden the Court file without any practical benefit and even otherwise I do not read any illegality in such adoption in the form as provided in the rules and the rule itself. With regard to objection that the deponent of the affidavit filed in support of this application was not duly authorized, the resolution which is dated 16-7-2008 and is much prior to date of the filing of this application amply gives authority to him to file his affidavit. The word nominee has no significance in present case as the affidavit has not been filed by nominee. So far the case of Faqeer Muhammad (supra) is concerned it goes on the premises that where a pleading is not signed by the party, the concession as is provided in the proviso to Rule 14 of Order VI, C.P.C. will not be available to such party and the plaint which was rejected in the case by the lower forum was affirmed by the Honourable Supreme Court. In the present case the defendant No.1 does not wish to prove contents of its written statement by leading evidence, therefore, the written statement which is a part of pleading without evidence will remain unproved except the facts which stand admitted by it. In the face of the fact that the defendant itself does not wish to lead evidence in respect of the contents of its written statement, the issue No.5 as noted above looses significance that it was on oath and solemn affirmation or not as it will not be a piece of evidence. Despite the above scenario, the plaintiff insists upon summoning the MD of defendant No. 1 and I am unable to find real logic behind it for that if the witness does appear and admit that written statement was on oath and solemn affirmation, perhaps the written statement will become a piece of evidence which could be relied upon by defendant No.1 and even without evidence from the side of defendant No.1. In case the witness appears and says that written statement is not on oath and solemn affirmation, the only effect of it would be that the written statement is defective and will not be taken into consideration by the Court except admissions. As the facts stand today nothing much turns upon issue No.5 as defendant No.1 has made a categorical statement that it does not wish to lead evidence in the case and upon recording evidence of plaintiff, side of defendant No.1 be closed with nil evidence. It may also be noted that sub-rule (2) of Rule 10 of Order XVI, C.P.C. requires the Court to issue proclamation for the attendance of witnesses to give evidence and produce the documents only when the Court sees that there are reasons to believe that such evidence or production is material. Although this provision applies where the person summoned has failed to attend to compel his attendance but the fact remains that the question as to whether his evidence is material will remain open to agitation even at the stage of his first summoning. As discussed above, there appears to be hardly any reason to believe that the production of the MD of defendant No.1 is material. It may further be observed that compliance of sub-rule (1) of rule 2 of order XVI was mandatory and expenses of witnesses before grant of summons were required to be deposited by the plaintiff. Having not complied with such provision, the grant of summons was not legal and the summons issued is recalled. The application in the above terms stands disposed of. S.A.K./N-52/K Application accepted.