P L D 1994 Lahore 374 (PLP)

This revision petition is directed against tie order dated 12‑9‑1993 whereby the learned Civil Judge, Faisalabad closed the plaintiff‑petitioner's evidence under Order XVII, Rule 3, C.P.C.

2. The. relevant facts which gave rise to the present revision petition, in briefly are that on 8‑2‑1992 petitioner Muhamarad Nazar Qureshi Hashmi instituted a suit against Shaukat Ali and 3 ethers, respondents herein, for the possession of a house through specific performance of as agreement of sale dated 24‑9‑1989. The suit was contested by the respondents and on the divergent pleadings of the parties as many as six issues were framed on 10‑11‑1992. The petitioner examined three witnesses in support of his case including himself. One Shahbaz Akhtar Ghuman, Sub Registrar 'was summoned as. a witness for the' petitioner for 13-6‑1993. He did not appear despite service, whereupon instead of issuing coercive process against him a fresh summons was issued for 24‑7‑1993. He was volt served and a fresh summons was issued for 2‑9‑1993. Again he failed to appear despite service and the case was adjourned to 12‑9‑1993 with the direction that a fresh summons be issued against the said witness. On 12‑9‑1993 it was reported that the witness had not been served, whereupon, the learned trial Court closed the petitioner's evidence vide the following order:‑‑

3. Feeling aggrieved the petitioner has come up in revision to bring tinder challenge the correctness of the said order.

4. I have heard the parties' learned counsel and have also gone through the record.

5. Learned counsel for the petitioner has submitted that the impugned order was patently illegal because it was the duty of the learned trial Court to have secured the attendance of the summoned witness and resultantly his evidence could not be closed. Conversely learned counsel for the respondents has defended the impugned order and maintained that as the petitioner had failed to produce his witness despite several opportunities no further indulgence could be shown to him. Besides, he submitted that the High Court in the present case fide order dated 13‑12‑1992 had directed the trial Court to dispose of the suit within eight months and, therefore, further, adjournment 6n 12‑9‑1993 was not possible.

6. It is now settled law that. where a witness has been summoned by a party and the said witness fails to appear in Court despite service the Court has to take coercive measure against him to ensure his attendance and the party summoning the witness could not be penalized. It is laid down that as primarily it is the duty of the Court to secure' the attendance of a witness. The decision of the Supreme Court in Mst. Bashir Bibi v. Aminuddin and 9 others PLD 1973 Supreme. Court 45 may, be cited as an example. In the present case the learned Court below has violated the law laid down in the aforecited authority, as a result of which the impugned order is rendered illegal.

7. It is correct that a direction was issued by this Court on 13‑12‑1992 to dispose of the suit within eight months but this did not mean that the parties were to be deprived. of their right to present their case and produce their evidence. Learned trial Court should have scheduled the. hearing of the case in such a manner that the case was disposed of within the prescribed time. Short dates and prompt adoption of coercive measures against the delinquent witness would have facilitated early disposal of the case and no occasion. would have arisen to take such an extreme step. The subordinate Courts should know that such directions from the superior. Courts are always a test of their capabilities and skill to intelligently handle and manage such cases. Such directions should never be taken as a pretext to guillotine. a case because these are issued with a view to do expeditious justice and not to promote miscarriage, of justice.

8. In view of what has been stated above the impugned order is held to be illegal. Accordingly I allow this revision petition and set aside the said order. Shahbaz Akhtar Ghuman, Sub‑Registrar shall be summoned through a Special messenger for an early date and if he fails to appear his warrant of arrest shall be issued and the petitioner's evidence shall be concluded within one month of the next date of hearing i.e. 28‑3‑1994 on which date the parties shall appear before the learned trial Court in person. M.BA./N‑237/1 Petition allowed