P L D 1973 Supreme Court 45 (PLP)

SAJJAD AHMAD, J.‑This appeal arises out of an order dated the 22nd of July 1970, made in an administration suit, which is pending in the Court of a learned Civil Judge at Lahore. The dispute is between the appellant and her real brothers in respect of two properties located at Railway Road, Lahore, one of which she claims to have received in gift from her late father, K. B. Khairuddin, and the other from her real brother, Zahiruddins, respondent No. 2 in this appeal. The suit is now at the stage of the production of the evidence by the appellant. After some preliminary efforts made by her to get her witnesses summoned, did not bear fruit, she confined her request to the Court to summon two of her witnesses only, namely, D. Ws. Asghar Khadim, an Advocate, and one Abdul Ghafoor, through the process of the Court. On the 22nd of July 1970, the learned trial Judge directed that she should have them served on her own responsibility as a matter of last opportunity, and the case was fixed for hearing on the 28th of November 1970. By an earlier order dated the 9th of June 1970, the trial Judge had directed that Abdul Ghafoor, who was present in Court on that date, be bound down for the next date of hearing. As regards Asghar Khadim, it was ordered that he be summoned on payment of Talbana and that his service be effected by taking the summons dasti. As Asghar Khadim could not be served and Abdul Ghafoor, in spite of the fact that he was bound down to appear on the adjourned date, did not turn up, the trial Judge made the impugned order that these witnesses be produced by the appel lant on her own responsibility, and that this was her last opportunity to do so. The appellant challenged this order in a revision petition, which was dismissed by a learned Single Judge of the High Court. The learned Single Judge has held that the order of the trial Judge did not suffer from any error of jurisdiction to merit interference in revision. However, while disposing of the revision petition on the 8th of July 1971, the learned Single Judge directed that one last opportunity be given to the appellant to produce the two above‑mentioned witnesses on her own responsibility. Leave was granted to the appellant by this Court to consider whether there was any sanction in law for the direction, such as has been given by the trial Court and affirmed by the learned Single Judge of the High Court, putting the responsibility on a party to produce its evidence in a case, failing which its evidence is to be shut out. Order XVI of the Code of Civil Procedure deals with summoning and attendance of witnesses. Rule 1 of this Order provides that the parties at any time after the suit is instituted, may obtain, on application to the Court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents. Rule 2 provides for the expenses of the witnesses to be paid into Court when applying for summons, for their attendance. Rule 10 of this Order lays down that where a person fails to comply with summonses, and the Court sees reason to believe that the evidence of the witness is material, and such person has, without lawful excuse, failed to attend, or has intentionally avoided service, it may issue a proclamation, requir ing him to attend, to give evidence or to produce documents. A copy of such proclamation is to be affixed on the outer door or other conspicuous part of the house in which the witness ordinarily resides. Under sub‑rule (3) of this rule, the Court can also, in lieu of or at the time of issuing such proclamation, or at any time afterwards, issue a warrant, either, with or without bail, for the arrest of such person, and may also make an order for the attachment of his property in such amount as it thinks fit, nor exceeding the cost of attachment, and of any fine which may be imposed, which is Rs. 500 in the maximum, as, laid down in rule 12 of the same Order. It would appear from a he provisions of law cited above that the Courts have been given powers to compel the attendance of witnesses to give evidence Where they do not respond to summonses ordinarily or where they are avoiding appearance. We have not been able to discover any provision in the Code of Civil Procedure where under 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 dash summonses. In the result, we set aside the order of the trial Judge as well as of the High Court, and direct that the witnesses of the defendant‑appellant, namely, Abdul Ghafoor and Asghar Khadim; whom the defendant‑appellant wants to produce in evidence, should be duly summoned by the trial Court by resort to the legal process, as contained in Order XVI of the Code of Civil Procedure mentioned above. We further direct that this case be disposed of as expeditiously as possible. The costs of this appeal shall follow the event. K.B.A. Appeal accepted.