2009 PLP 1127 (MLD)

MUHAMMAD ALAM KHAN, J.

Saleem Khan has filed the instant writ petition against Abdul Manan and two others under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, wherein the petitioner has impugned the order, dated 12-10-2006 of respondent No.3 vide which he on acceptance of the revision petition ordered the production of the witnesses of the plaintiff/petitioner in a pending civil suit.

2. Briefly narrated facts of the case are that the plaintiff/petitioner brought a suit for pre-emption regarding land fully detailed in the head notes of the plaint. On filing of the written statement by Abdul Manan respondent, the trial commenced and the learned Civil Judge dismissed the suit of the petitioner vide judgment and decree, dated 20-7-2005, but his appeal filed thereagainst was accepted by the Additional District Judge-IV Bannu and the case was remanded to the trial Court with direction to frame issues with respect to the superior right of pre-emption and market value of the suit property and to decide the lis afresh in accordance with law. On remand after framing the necessary issues the plaintiff was asked to produce his evidence who relied on the evidence already recorded and only produced APW-1 and APW-2 and closed his evidence. It so happened that on 22-5-2006, Abdul Manan, defendant/ respondent No.1 submitted an application to the trial Court for issuance of direction to the plaintiff/petitioner to produce and tender the witnesses from serial Nos.1 to 6, for cross-examination, in view of the fact that fresh issues have been framed in case. The learned trial Court after calling for replication and hearing the learned counsel for the parties, vide order, dated 17-6-2006 turned down the prayer of defendant/ respondent No.1 who filed a revision petition and the learned Additional District Judge-I, Bannu vide order, dated 12-10-2006 accepted the same and directed the learned Civil Judge to call those witnesses for cross-examination. This last mentioned order is impugned in this writ petition.

3. It was submitted by the learned counsel for the petitioner that there is no provision of law for calling the witnesses for cross-examination and the learned revisional Court has fallen into an error to call the witnesses of the plaintiff/petitioner for cross-examination. Reliance in this respect was placed on Messrs Ilyas Marine and Associates Limited v. Muhammad Amin Lasania and another (1997 CLC 763).

4. The provisions of Order XVIII Rule 17, C.P.C. are crystal clear that the Court can at any time call any witness for examination or cross-examination even if earlier examined. In this case, the judgment and decree was set aside by the learned appellate Court and the lis was remanded to trial Court for decision afresh after framing of the two additional issues with respect to the superior right of pre-emption and market value of the suit-land. The plaintiff/petitioner was well within his right to rely on the evidence already recorded but could not refuse to tender his witnesses for the cross-examination of defendant/respondent No.1 as new situation had emerged and the defendant/respondent No.1 had a vested right to cross examine the witnesses. The case-law cited by the learned counsel for the petitioner has got no nexus with the facts and circumstances of the case in hand, in view of dicta handed down in the case of Messrs Ilyas Marine and Associates Limited Supra, and Rahmat Jan v. Gul-e-Nargis and 6 others (PLD 1989 Lahore 506) and also in the case of Nazir Hussain v. Abdul Manan through legal heirs (1998 MLD 678).

5. The learned revisional Court has passed an order which is strictly in accordance with law, justice and equity which cannot be interfered with by this Court in exercise of its extraordinary constitutional jurisdiction under Article, 199 of the Constitution of Islamic Republic of Pakistan, 1973.

6. In view of the facts and circumstances of the case narrated above, we find no merit in this writ petition which is dismissed in limine. H.B.T./127/P Petition dismissed.