2013 PLP 200 (SCMR)

EJAZ AFZAL KHAN, J.

This appeal with the leave of the Court has arisen out of the judgment dated 23-9-2011 of the Peshawar High Court, Peshawar, whereby the learned Judge in his Chambers dismissed the revision petition filed by the appellant and maintained the orders of the fora below.

2. Learned counsel appearing on behalf of the appellant contended that where the witness sought to be summoned through Court is the one who is also cited as such in the list of witnesses submitted by the respondents, the learned Trial Court could not have refused to summon him. The learned counsel next contended that it is, of course, the responsibility of the party to produce its witness but when it reports its inability to do so and applies for process of the court for his attendance there is no sanction in law for refusing such request. The learned counsel to support his contention placed reliance on Mst. Bashir Bibi v. Aminuddin and others (1972 SCMR 534).

3. The learned counsel appearing on behalf of the respondents contended that the order passed by the trial Court was revisable but instead an appeal was preferred that too before a forum which did not have pecuniary jurisdiction to entertain it. In this context, the learned counsel added, the order passed by the learned Additional District Judge would be just corum-non -judice while the revision petition filed before the High Court being barred by limitation could be dismissed on this score alone.

4. We have gone through the record and have carefully considered the arguments of the learned counsel for the parties.

5. Be that all as it may, the record reveals that the witness sought to be summoned through the process of the Court is the one who is also cited as such in the list of witnesses submitted by the respondents. His evidence cannot, thus, be ignored so lightly. Yes, appellant may have undertaken at some stage to produce the said witness but when he reported his inability to do so and asked for the indulgence of the court, it should not have been refused. It would be clearly a case of failure of exercise of jurisdiction vested. The case of Mst. Bashir Bibi v. Aminuddin and others (supra) may well be referred to in this behalf. The relevant portion therefrom is quite enlightening which runs as under:-- "We have not been able to discover any provision in the Code of Civil Procedure whereunder the responsibility can be put on a party to produce its evidence on pain of losing its right to produce that evidence. Even in a case where a party undertakes to produce its own evidence but then reports its inability to do so and applies for process of the Court for the attendance of its witnesses, there is no sanction in law for refusing such a request. The Court may, in the exercise of its inherent powers to prevent abuse of the process of the Court, decline to accede to such a request where it is found that the party is deliberately seeking to prolong the case to the grave disadvantage of the other side, and that the evidence sought to be adduced has no material bearing on the decision of the case. In the present case, one of the appellant's witnesses namely, Abdul Ghafoor, whom she wanted to summon, was present in Court on the 9th of June 1970, and was actually bound down by the Court to attend on the next date of hearing. His failure to attend thereafter was not due to any fault of the appellant, and the Court must have moved its own coercive machinery to procure his attendance. As regards the other witness, who is an Advocate, there should have been no difficulty for the Court to secure his attendance by sending a summons to him or by resort to coercive process if the witness was refusing to attend or was avoiding appearance. But there appears to be no justification in law or on the facts of this case as mentioned above, for refusal by the Court to summon these witnesses through its own process, merely because the appellant had failed to have their service effected by dasti summonses." It is pathetic and even painful to note that an erroneous order of the Trial Court gave rise to an appeal before the Court of appeal; an erroneous order of the Court of appeal gave rise to a revision before the High Court, and an erroneous order of the High Court gave rise to a petition for leave to appeal and then appeal before this Court. It appears that the courts exercising appellate or revisional jurisdiction were of the view that the purpose behind conferment of jurisdiction on either of them was to rubber stamp the orders of the courts below. They failed to realize that these courts in the hierarchy have been established to correct errors of the fora below and thereby undo the injustice done to the parties. Had the presiding officers of the fora below in general and the learned Judge of the High Court exercising revisional jurisdiction in particular applied their minds before summarily turning down a perfectly legal request they would have saved the appellant from unnecessary hardships, expenditure and multiplicity of litigation up to this Court. Casual or perfunctory exercise of jurisdiction would tend to defeat the very purpose of conferring this jurisdiction on such courts. Therefore, the orders thus passed cannot be maintained.

6. For the reasons discussed above we allow this appeal, set aside the impugned orders and allow the application of the appellant for summoning the witness mentioned therein. MWA/H-5/SC Appeal allowe