2012 PLP 870 (CLC)

KHALID MEHMOOD, J.

This revision petition under section 115, C.P.C. is directed against the judgment and order dated 24-9-2011, whereby learned Senior District Judge-VII, Abbottabad turned down the applications of petitioners; first for summoning of two official witnesses and second for appointment of local commissioner in order to record the statement of Saleem Khan Jadoon petition-writer.

2. Mst. Maryam Mushtaq respondent No.1 filed a suit for declaration, perpetual injunction, possession of suit house, recovery of rent and damages to the tune of Rs.1,00,00,000/- against petitioners. Defendants Nos.1 to 5 and 12 contested the suit by filing written statement and trial court recorded evidence of plaintiff whereas defendants evidence was in progress, the defendants applied for summoning of two official witnesses and appointment of local commission for recording statement of defendant No.12 namely Muhammad Salim Khan petition-writer being bed-ridden on account of amputation of his both legs due to diabetes. Respondent No.1 contested the application and learned trial court after hearing both the parties turned down the same vide impugned order dated 24-9-2011.

3. Learned counsel, for petitioners argued necessity for examination of official witnesses through process of court arose when D.W. Ali Asghar Shah was being examined and who disclosed non-existence of outstanding of alleged telephonic bill, on the basis of which cause of action arose. Trial court has vast powers to call any witness which in the opinion of the court would provide sufficient evidence for just decision of the cause. It was also argued that appointment of local commission for recording statement of defendant No.12 namely Muhammad Salim Khan petitions-writer, being bed ridden on account of amputation of his leg due to diabetes, would meet the ends of justice as on several occasions he was produced before court but due to non-attendance of learned counsel for respondent No.1 his statement could not be recorded. He further contended that the order and judgment of learned trial court is not based on any rhyme or reason, hence, it is a non-speaking order rather application was rejected due to reason of N.J.P.M.C.

4. On the other hand learned counsel for respondent No.1 opposed the contentions of petitioners and argued that learned trial court, who seized of the matter, has exercised his discretion rightly by turning down the applications of petitioners. Application was moved at a belated stage and trial court was not legally bound to have given the reason while rejecting the application.

5. We have heard learned counsel for the parties at great length and gone through the whole record with their able assistance. A plethora of case-law has been cited by either side.

6. Perusal of record would show that proceedings were in progress in smooth and harmonious manners despite the fact that defendant No.11 being infirm person time and again appeared for recording his statement but his evidence could not be recorded for want of attendance of learned counsel for respondent No.1 on a number of dates. The defendants applied appointment of local commission for recording statement of defendant No.11 namely Muhammad Salim Khan petition-writer being bed-ridden on account of amputation of his legs due to diabetes. The disability of said witness is admitted by both the parties. It would be just and proper to record his statement by the Presiding Officer in presence of parties and their counsel on a date, time and place so fixed by the trial Court.

7. So far as second application filed for summoning of two official witnesses is concerned, it appears that necessity for examination of official witnesses through process of court arose when D.W. Ali Asghar Shah during the course of his cross-examination in response to a question deposed:

"Self-stated that, the basis of suit on a notice of telephone bill of PTCL, received by the plaintiff is false because I went to the office of the PTCL and enquired about the said notice. The department informed me that the outstanding amount you are talking about of Mst. Gohar Sultana had been written off by the long time back by the department. The department told me that ask the plaintiff to produce the receipt of the payment of the outstanding telephone balance in the court. They also said that if the August High Court direct us we shall produce the record of the telephone number. It is not written in the written statement, however, there is negation of all the points of the plaintiff in the written statement".

8. After recording of statement of said D.W., application was moved on 19-10-2010 to bring on record the point of controversy regarding the said notice of outstanding amount. Other point that whether late Mst. Maryam Mushtaq had received her pension till 2005 is also a question which goes to the roots of the case. When these two important questions of facts had been brought on record, then none should afraid if the same record is brought on the judicial file so to enable the trial Court for giving its just and proper decision for resolving the real controversy between the parties.

9. The impugned order of the trial court does not meet the basic requirement of decision as every order and judgment should be based on reasons, which convince a prudent man and according to law laid down by the superior Courts. We do not agree to the stance and argument of learned counsel for respondent that for rejecting the application court was not bound to have given the reasons for its rejection. It is settled law that every order for resolving the controversy, it should have been based on reason, order without any rhyme or reason is nullity in the eye of law. In a similar nature wherein application for calling of official witness was moved after 31/2 years "Umar Hayat v. Additional District Judge and others" reported in 2004 SCMR 1367, it was held:

"Summoning of witness after a delay of 3-1/2 years

Trial Court summoned the witness required by plaintiff to be produced and the order was maintained by Appellate Court as well as by High Court in exercise of Constitutional jurisdiction

Validity

Trial Court was competent to grant permission under O. XVI, R.1(2), C.P.C. for summoning any witness at any stage subject to showing good cause

Trial Court, in exercise of its discretionary jurisdiction had granted permission to summon the witnesses for recording evidence and the order was maintained by Appellate Court as well as by High Court

Supreme Court in exercise of jurisdiction under Art.185(3) of the Constitution declined to interfere with the orders

Leave to appeal was refused".

10. Moreover, in another identical case of WAPDA v. Oazi Muhammad Irshad (2006 MLD 1532), this Court had held that though evidence of plaintiff was closed even then official witness was allowed to bring on record the remaining official record for just decision of the case. The relevant portion of the judgment is reproduced as under:

"Plaintiffs, after recording statements of their witnesses and one of the plaintiffs closed their evidence

Record Keeper, who was examined as witness by the defendant/Authority, could neither produce site Plan of property in question nor had knowledge if any notice was served on plaintiffs for charge of taxation at commercial rate

Application submitted by defendants to call Assistant Superintendent Revenue as witness and for amendment of list of witnesses was turned down by Trial Court

Validity

As question of applicability of different rates regarding connection of electricity were involved in the case and Record Keeper examined as witness having shown his ignorance about all the relevant facts, defendants had a right to prove their case through all available evidence and could request the Court to call witnesses to produce documents and make statement

Trial Court, in circumstances, had erred in not allowing defendants to call Assistant Superintendent along with requisitioned record and make statement accordingly

Trial Court had the power to call persons other than those mentioned in the list of witnesses of the parties

Impugned order was set aside with direction to trial Court to call required person as witness of the defendants for producing requisitioned record and make statement in respect of the same".

11. A Division Bench of this Court in a recent judgment delivered in Writ Petition No.107 of 2009 dated 2-11-2011 facing with this situation has observed as under:

"As law favours adjudication, the controversy between the parties on merits and technically knocking out the other party is an exception and not as a rule. In judicial system all trial procedures are meant for advancement of cause of justice and are not for use and purpose of entrapping litigant to a blind alley. The Civil Procedure Code has laid down the procedure for adjudication upon the matters on in a stream line so enabling the litigants to adopt the procedure for assistance of the court for proper and just adjudication on the point of controversy between the parties. If any procedure makes hindrance in the way of administration of justice then the same can be ignored. In the present case petitioners want to produce the official witnesses through the authority of the court and that can only be done under Order XVI, rule 14, C.P.C. through authority of the court to enable for summoning the said witnesses. In this regard reliance can be made in case of Mst. Bashir Bibi v. Aminuddin and 9 others reported in PLD 1973 SC 45, wherein it has been held that court cannot shove responsibility on shoulders of party to produce evidence even where party had undertaken to do so but is otherwise unable to compel witness to attend. Court, in circumstances must move its own coercive machinery to procure attendance of witness''.

12. As already stated above, the petitioners want to examine both the official witnesses through process of court of law as they are Government servants and the official witnesses can only be produced through authority of the court to unearth and brought on record the real facts and official record for just and proper decision of the case. As valuable rights of the parties are involved in the present case, hence, equity and administration of justice demand that official witnesses be produced through authority of the Court, therefore, the order of the learned lower appellate court is set aside.

13. Consequently, this writ petition is allowed. Impugned judgment and order of trial court dated 24-9-2011 is set aside. Petitioners are allowed to examine the two official witnesses through process of court of law whereas keeping in view the critical condition of defendant No.11, the trial court is directed to examine him in presence of parties and their respective counsel at the time and place fixed by the trial court. H.B.T./8/P Petition allowed.