1984 PLP 408 (SCMR)

NASIM HASAN SHAH, J.‑The petitioner instituted a suit for specific per formance of an agreement of sale, dated 29‑5‑1981 against Malik Gnulam Dastgir, Amit Abdullah, Muhammad Khalid and Muhammad Iqbal (Res pondents 3 to 6 herein. During the pendency of the suit, a case was registered against the petitioner under sections 420/465/468 and 471, P. P. C., on the allegation that he had forged the aforementioned agreement of sale with a view to showing that it was executed prior to the registration of the sale‑deed in favour of the complainant. The investigating authorities, with the permis sion of the Court, took away the agreement in original, for purposes of their investigation. However, a photostat copy of the same was retained on the record. When the case came up for evidence of the plaintiff (petitioner herein) on 16‑5‑1982, two of the witnesses, who were summoned to prove the said agreement, were present in Court but the counsel for the plaintiff/petitioner refused to examine them on the ground that in the absence of the original document they could not be examined and sought an adjournment until such time as the original was brought back. The learned trial Court had refined to adjourn the case on the ground that both the witnesses, who had been summoned being present, should be examined and recorded their state ments as Court witnesses. The learned trial Court, however, directed that the one original document be called for and allowed the petitioner to summon the other witnesses, such as the scribe and one other alleged marginal witness of the document to prove its execution. Dissatisfied with the order, dated 16‑5‑1982 passed by the learned trial Court whereby the petitioner's objection not to examine any witness until the original document was produced before the Court was overruled, and two of his witnesses were examined as Court witnesses, he filed a revision petition before the learned District Judge, Sargodha. The said revision was dismissed by the learned District Judge by a detailed order passed on 27‑1‑1983, in the course of which he observed :‑ "I am aware of the provisions that oral evidence in respect of a docu ment or as regards facts incorporated in a document is not admissible. In the present case, however, the position is somewhat different. Even if the original document would have been there, the witnesses were not going to support it, which is evident from their testimony that they have furnished by appearing as Court witnesses." Dissatisfied by the dismissal of his revision petition, the petitioner moved the High Court, through a writ petition contending that the evidence recorded by the learned trial Court was inadmissible because when the said witnesses were examined the original agreement of sale was not on the record. It was further submitted that the petitioner be allowed to re‑sum mon the aforementioned witnesses, apart from other witnesses, to prove the document as and when the original is available on the record. The learned Judge in the High Court, however, was not inclined to accept these submis sions and dismissed the writ petition vide his, order 5‑3‑1983. Hence this petition for leave. We have beard Mr. Shahzad Jehangir, learned counsel for the petitioner and Mr. Rafiq Javed Butt for respondents Nos. 3 to

6. The learned counsel for the petitioner has urged that the learned trial Court had acted in viola tion of the provisions of section 91 and overlooked those of section 65 of the Evidence Act in allowing oral evidence to be adduced in the absence of the original document when the same could easily have been procured. The learned counsel for the respondents, in reply, besides referring to the provisions of Order XVI, rule 7 of the C. P. C., which empowers the Court to require any person present in Court to give evidence, further submitted that the objection to the admissibility of the evidence of the two witnesses and the prayer for permission to re‑summon them was actuated simply for delaying the disposal of suit and for no other end. There is some force in the submission of the learned counsel for the petitioners that the witnesses summoned to prove the execution of the document should have been examined when the original document was, available on the record. However, we agree with the respondents that the suit should not be unnecessarily delayed. We consider that the two witnesses, who have already been examined, may be re‑summoned when the original document is available on the record and should be re‑examines, We understand that the original document has since been received back in the trial Court. We are further informed that the next date of hearing in the suit before the learned trial Court is fixed for the 12th of October, 1983. With the consent of the learned counsel for the parties we direct that the learned trial Court do re‑summon the two witnesses, whose evidence has already been recorded, for a date to be fixed within one month from today and re‑examine them on the said date. The document shall be retained by the trial Court until these witnesses and the other witnesses whom the plaintiff wishes to examine with regard to the execution of the said document have been examined. The learned counsel for the petitioner has assured us that all the relevant witnesses will be produced by him at the next date of hearing and that no further adjournment will be asked for in this connection. We, accordingly; convert this petition into an appeal and allow it in the terms noted above, leaving the parties to bear their own costs. S. Q. Appeal allowed.