1993 PLP 336 (MLD)

Sh. Muhammad Abdullah for Petitioner. Sardar Muhammad Ayub Khan Lodhi for Respondent No.1. Abdul Majeed Oureshi for Respondents Nos.9 to

16. Nemo for other Respondents. Date of hearing: 17th May 1992. This Constitutional petition calls in question the legality of order, dated 20‑5‑1991 passed by the learned Addl. District Judge, Lahore, whereby the revision petition filed by the petitioner against the order, dated 22‑12‑1990 passed by the learned trial Court closing his evidence under Order 17, Rule 3, C.P.C. was dismissed.

2. In a suit filed by the petitioner 10‑11‑1990 was the date fixed for recording the evidence in rebuttal of the petitioner. The witness summoned by the petitioner had not been served. The learned trial Court passed an order for adjournment of the case to 29‑11‑1990 with the direction that the petitioner shall get his witness served at his own responsibility. On 29‑11‑1990 it was observed by the learned trial Court that the summoned witness did not appear in spite of service, therefore, bailable warrant in the sum of Rs.5,000 was issued for procuring his attendance and the case was adjourned to 11‑12‑1990. On 11‑12‑1990 the said witness was not produced before the Court and the case was adjourned to 22‑12‑1990 for recording the evidence of the petitioner at his own responsibility. It appears that it escaped the notice of the learned Court that the petitioner was not under an obligation to produce the witness because bailable warrants had been issued to procure his attendance who after service of summon personally had not appeared. On 22‑12‑1990 since the petitioner failed to produce the said witness who was Government Officer and in spite of fi he fact that it was brought to the notice of the Court that the said witness had declined to attend the Court unless summoned through process of Court, the learned trial Court proceeded to pass order under Order 17, Rule 3, C.P.C. for closing the evidence of the petitioner. The revision petition by the petitioner has been dismissed by the learned Addl. District Judge through order, dated '.'.0‑5‑1991 impugned in this writ petition.

3. It is evident from the facts stated above that the petitioner had is charged his obligation regarding the service of summon on the witness called by him and the said witness having failed to appear, the learned trial Court issued bailable warrants to procure his attendance. It was no longer the legal obligation of the petitioner to get the witness served or to cause his attendance, as it was the obligation of the Court to procure his attendance by coercive means. Order, dated 22‑12‑1990 passed by the learned trial Court for closing the evidence of the petitioner in these circumstances is based on misconception of true legal and factual position which suffers from material: irregularity and illegality, therefore, the learned Addl. District Judge was, bound under the law to‑set aside the same as the said order also amounted to failure to exercise jurisdiction by the learned trial Court to get the; attendance of the witness. The order passed in revision petition is also not sustainable.

4. This writ petition is accepted. Order, dated 20‑5‑1991 passed by the l learned Addl. District Judge, Lahore and the order, dated 22‑12‑1990 passed by the learned trial Court are hereby declared to have been passed without lawful authority and of no legal effect and quashed. The learned trial Court shall procure the attendance of the witness of the petitioner through coercive means and record his evidence. The case shall be disposed of within one month from the date of recording of evidence of the said witness. The parties shall appear before the learned trial Court on 23‑5‑1992. There will be no order as to costs. F.R/M‑402/L. Petition accepted.