2018 C L C 87
Civil Procedure Code (V of 1908)---
----S.32 & O. XVI, R.10(3)---Specific Relief Act (I of 1877), S.42---Suit for declaration and partition---Plaintiffs moved application to summon private witnesses through the court as said witnesses did not turn up despite receiving notices---Application was dismissed by the Trial Court---Powers and discretion of Court to summon witnesses---Scope---Petitioners contended that the witnesses in question were material witnesses which were necessary to resolve the controversy---Respondents contended that Court had discretion to summon the private witnesses if it was satisfied---Validity---Order XVI, R.10, C.P.C.. stipulated that in case of failure of a witness and or to ensure his/her appearance, the court might issue a warrant, with or without bail, for the arrest of such person, and make an order for the attachment of his/her property to such amount as it thought fit---In the present case, no order was passed by the trial court under sub-Rule (3) of R.10 of O.XVI or S.32, C.P.C.---High Court observed that Court of law was not a silent spectator and was supposed to act vigilantly in order to unearth the truth with the subject to resolve the controversy between the parties once for all---Trial Court, in the present case, had failed to realize that conferment of jurisdiction over it was not to rubber stamp the contention of the respondent---Legislature in its wisdom had inserted the provisions and bestowed the court with power to save the litigants from unnecessary hardship, expenditure and multiplicity of litigation---Casual or perfunctory exercise of jurisdiction, or refusal to exercise the vested jurisdiction would tend to defeat the purpose of conferment of jurisdiction upon the court, which would ultimately lead to injustice---Record showed that initially the names of purported witnesses were mentioned in the list of witnesses and summonses/ notices were also served upon them and after their refusal to appear before the court, the Trial Court was not only empowered to issue warrants of said witnesses with or without bail (surety bond) but was also empowered to pass orders for attachment of their moveable and/or immoveable properties in order to enforce their appearance---Impugned order passed by the Trial Court was set aside and the application filed by the petitioners under O.XVI, R.10(3), C.P.C. was accepted---High Court directed the Trial Court to issue warrants of arrest of the purported witnesses without any further loss of time---Trial Court was directed to proceed with the matter on weekly basis and no unnecessary adjournment would be granted to either side and High Court desired that the litigation between the parties would finally be decided preferably within six months after receipt of present judgment---Revision was accepted accordingly.
Hakim Habibul Haq v. Aziz Gul 2013 SCMR 200 and Mst. Bashir Bibi and others v. Ameen-ud-Din and others 1972 SCMR 534 ref.
Shahid Javed for Petitioners.
Muhammad Ismail for Respondents Nos.1 and 2.
Date of hearing: 21st July, 2017.
2018 C L C 87
( Balochistan )
NOOR BIBI VS MEER MUHAMMAD alias MEER JAN
Before Muhammad Kamran Khan Mulakhail, J
NOOR BIBI and 13 others----Petitioners
Versus
MEER MUHAMMAD alias MEER JAN and 4 others----Respondents
Civil Revision No.216 of 2015, decided on 18/08/2017.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- This order shall dispose of Civil Revision Petition No. 216 of 2015, which is directed against the order dated 24.07.2015 (impugned order) passed by the learned Qazi Lasbela at Uthal ("trial court") whereby the application filed by the petitioners under Order XVI, Rule 10(3), C.P.C. was dismissed.
2.Learned counsel for the petitioners inter alia contended that a civil suit "For Declaration and Partition of Inherited Properties" was filed by the petitioners against the respondents, which is pending adjudication before the trial court; that after receipt of written statements of the defendants/respondents and after framing the issues with regard to dispute between the parties, the list of witnesses was also filed by the petitioners in which official witnesses were sought to be summoned through the court while the private witnesses mentioned therein were intended to be produced by the petitioners; that the private witnesses at serial Nos.5, 7 and 8 of the list of witnesses of the petitioners were material witnesses in order to resolve the controversy relating to issue in dispute between the parties; that the suit filed by the petitioners pertains to partition of inherited properties and since earlier the private partition also took place between the parties to which the aforesaid persons were witnesses, therefore, their names were mentioned in the list of witnesses but despite receiving summonses/notices of the court for their appearance and for deposition, the said witnesses refused to appear before the court; that on failure to produce the said witnesses before the court, the petitioners filed an application under Order XVI Rule 10(3), C.P.C., which was contested by the respondents and the trial court through the impugned order dismissed the application; that subject to refer to provision of Order XVI, Rule 10(3), C.P.C. the trial court was empowered to issue warrant of arrest of the purported witnesses to ensure their appearance for resolving the issue in dispute between the parties; that the law in this respect was well explained, therefore trial court was supposed to issue warrant of arrest of the witnesses to ensure their appearance, but the trial court has instead dismissed the application filed by the petitioners by observing that the said course will amount to wastage of time of the court which will ultimately prolong the litigation between the parties. In support of his contentions the learned counsel placed reliance on the judgments passed by the Hon'ble Apex Court in the case of Messrs Naeem Engineering Corporation v. Government of Punjab (1988 SCMR 1167) and Shisham Jan v Karam Husain (SC Azad J&K) (1994 MLD 779). He finally urged for setting the impugned order and sought direction to the trial court for issuing warrants of arrest of the purported witnesses.
3.Learned counsel appearing on behalf of respondents Nos.1 and 2 contended that the impugned order passed by the trial court was appealable under Order XLIII, Rule 1(g), C.P.C., but instead of filing an appeal, the civil revision has been preferred before this court. He also referred to Section 24 of the Dastoor-ul-Amal Diwani Kalat and stated that instead of filing a revision petition before this court same was required to be filed before Majlis-e-Shoora, which being the appellate Court was competent enough to judicially scrutinize the order of the trial court in its revisional jurisdiction; that in the list of witnesses the petitioners themselves volunteered to produce the private witnesses on their own, with the only prayer for summoning the official witnesses through court; that the referred to provision of sub-Rule (3) of Rule 10 of Order XVI, C.P.C. is in respect of powers of the court, which can only be exercised on discretion of the court, when the court is satisfied that the statement of any witness is material for resolving the issue in dispute between the parties. While supporting the impugned order the learned counsel propounded that the trial court was not satisfied to issue warrants of the witnesses and it was rightly observed that if the witnesses themselves are not ready to depose in favour of the calling party then asking or taking any coercive action against them to ensure their attendance will be against the mandate of law and dictates of justice. He therefore urged for dismissal of the petition.
4.I have heard the learned counsel for the parties and have also gone through the relevant law with their able assistance. The contention of the learned counsel for the respondents in respect of maintainability of the petition was considered with care and caution. Bare perusal of Order XLIII, Rule 1(g), C.P.C. reveals that it deals " with APPEALS FROM ORDERS" whereas its (Sub-Clause-g) stipulates that "an appeal shall lie from order under Order XVI, Rule 10, C.P.C. for the attachment of the property", therefore Rule 10 (3) of Order XVI, C.P.C. being relevant is reproduced herein under:
"Order XVI. SUMMONING AND ATTENDANCE OF WITNESSES. Rule 10. Procedure where witness fails to comply with the summons. (I) ... (2) ... (3) In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under rule 12:
Provided that no Court of Small Causes shall make an order for the attachment of immovable property."
The afore referred provision shows that in case of failure of a witness and or to ensure his/her appearance, the court may, issue a warrant, with or without bail, for the arrest of such person, and may make an order for the attachment of his/her property to such amount as it thinks fit .. But in the instant case no order was passed by the trial court under sub-Rule (3) of Rule 10 of Order XVI, C.P.C. and the application filed by the petitioners was dismissed, therefore, no appeal shall lie against the dismissal of the application of civil revision petition would be competent to assail the order of dismissal of the application.
The objection with regard to filing a revision petition before the Majlis-e-Shoora is also misconceived because in the first limb of his arguments the learned counsel stated that the impugned order is appealable and not revisable but in the second limb of the argument the learned counsel stated that revision was competent before Majlis-e-Shoora and not before this court. Needles to observe here that it is by now well settled that under Dastoor-ul-Amal Diwani Kalat the Majlis-e-Shoora has no power to entertain a revision petition against the interlocutory order passed by the trial court. Thus, both the objections raised on behalf of the respondents are not tangible being misconceived and misconstrued.
5.In order to resolve the proposition involved in the instant case, it is instructive to reproduce Section 32, C.P.C. which runs as under:
"32. Summons to witness. The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may---
(a)Issue a warrant for his arrest;
(b)Attach and sell his property;
(c)Impose a fine upon him not exceeding [two thousand] rupees;
(d)Order him to furnish security for his appearance and in default commit him to prison."
The afore referred provision when read with the provision of Order XVI, Rule 1 and Rule 10, C.P.C., it clearly depicts that court is not a silent spectator and every court of law is supposed to act vigilantly in order to unearth the truth with the object to resolve the controversy between the parties once for all. The trial court has failed to realize that conferment of jurisdiction over it was not to rubber stamp the contention of the defendants, therefore, the legislatures in their wisdom have inserted the provision supra and bestowed the courts with powers to save the litigants from unnecessary hardship, expenditure and multiplicity of litigation. A casual or perfunctory exercise of jurisdiction, or refusal to exercise the vested jurisdiction would tend to defeat the purpose of conferment of jurisdiction upon the courts, which will ultimately lead to injustice. It is evident from the record that initially the names of purported witnesses were mentioned in the list of witnesses and summons/notices were also served upon the and after their refusal to appear before the court, subject to provision of Section 32 read with Rule 10 of Order XVI, C.P.C., the trial court was not only empowered to issue warrants of said witnesses with or without bail (surety bond) but was also empowered to pass orders for attachment of their moveable and/or immovable properties in order to enforce their appearance. The Hon'ble Supreme Court of Pakistan while dealing with a similar proposition in the case of Hakim Habibul Haq v. Aziz Gul (2013 SCMR 200) while placing reliance on a judgment rendered in the case of Mst. Bashir Bibi and others v, Ameen-ud-Din and others (1972 SCMR 534) observed as under:---
5.Be that all as it may, the record reveals that the witness sought to be summoned through the process of the Court is the one who is also cited as such in the list of witnesses submitted by the respondents. His evidence cannot, thus, be ignored so lightly. Yes, appellant may have undertaken at some stage to produce the said witness but when he reported his inability to do so and asked for the indulgence of the court, it should not have been refused. It would be clearly a case of failure of exercise of jurisdiction vested. The case of Mst. Bashir Bibi v, Aminuddin and others (supra) may well be referred to in this behalf. The relevant portion therefrom is quite enlightening which runs as under:--
"We have not been able to discover any provision in the Code of Civil Procedure whereunder 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 dasti summonses."
It is pathetic and even painful to note that an erroneous order of the Trial Court gave rise to an appeal before the Court of appeal; an erroneous order of the Court of appeal gave rise to a revision before the High Court, and an erroneous order of the High Court gave rise to a petition for leave to appeal and then appeal before this Court. It appears that the courts exercising appellate or revisional jurisdiction were of the view that the purpose behind conferment of jurisdiction on either of them was to rubber stamp the orders of the courts below. They failed to realize that these courts in the hierarchy have been established to correct errors of the fora below and thereby undo the injustice done to the parties. Had the presiding officers of the fora below in general and the learned Judge of the High Court exercising revisional jurisdiction in particular applied their minds before summarily turning down a perfectly legal request they would have saved the appellant from unnecessary hardships, expenditure and multiplicity of litigation up to this Court. Casual or perfunctory exercise of jurisdiction would tend to defeat the very purpose of conferring this jurisdiction on such courts. Therefore, the orders thus passed cannot be maintained."
6.Therefore, in view of above discussion and dictum laid down by the Hon'ble Apex Court, it is held that the court of original jurisdiction being a court of first instance was not only empowered to issue warrants of purported witness but was also empowered to pass order of attachment of their moveable and/or immovable properties in order to ensure their attendance and to meet the ends of justice. Thus, the impugned order dated 24.07.2015 passed by the learned Qazi Lasbela at Uthal is set aside and the application dated 28.05.2015 filed by the petitioners under Order XVI, Rule 10(3), C.P.C. is accepted. The trial court is directed to issue warrants of arrest of the purported witnesses without any further loss of time.
The order sheets appended with the petition show that the litigation between the parties is pending adjudication since the year 2013, while this petition is pending before this court since 10.08.2015, therefore, the trial court is directed to proceed with the matter on weekly basis and no unnecessary adjournment shall be granted to either side and it is expected that the litigation between the parties shall finally be decided preferably within six months after receipt this judgment.
MQ/129/Bal. Revision allowed.
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