Dr. Professor M.A. CHEEMA, SURGEON, PIC, LAHORE vs TARIQ ZIA and others

' ANWAR ZAHEER JAMALI, C.J.---For the reasons set out in C.M.A No.2670/2014, office objection as regards delay of seven days in the filing of this civil petition for leave to appeal, is overruled.

2. Through this petition, leave to appeal is sought by the petitioner against the order dated 30-1- 2014, in Civil Revision No.1460/2005 (Re: Tariq Zia v. Province of Punjab, etc.), passed by the Lahore High Court, Lahore, whereby said civil revision was allowed and consequently the order impugned therein was set aside and the application under Order XVI, Rules 1 and 2, read with section 151, C.P.C., moved by the petitioner in a pending civil suit for recovery of damages amounting to Rs.100,00,000/-, was dismissed.

3. On 27.9.2004, the petitioner had moved such application for summoning the officials of Punjab Institute of Cardiology, Lahore for production of some record relating to patient Muhammad Talal.

After entertaining objection to this application from the other side, it was allowed by the Court of Civil Judge, Lahore vide his order dated 04.4.2005, with the observation that:- "The suit is for recovery of damages on account of death of patient Muhammad Talal due to alleged negligence of hospital and concerned doctors, therefore, record of the patient is helpful for just decision of the case and while treating the application of the defendant No.3 so application of additional evidence, in the interest of justice it is accepted at the cost of Rs.300/- and plaintiff is allowed to rebut the evidence of the defendant."

4. The above order was challenged by respondents Nos.1 to 3 through civil revision petition under section 115, C.P.C., before the Lahore High Court, being Civil Revision No.1560/2015, on the ground that the name of the said witness summoned with record from the Punjab Institute of Cardiology, Lahore was not appearing in the list of witnesses submitted by the petitioner. This plea was sustained by the revisional Court and resultantly the Civil Revision was allowed through the impugned judgment and the application under Order XVI, Rules 1 and 2, read with section 51, C.P.C.

Was dismissed.

5. We have heard the arguments of learned ASC for the petitioner. He has taken us to the list of witnesses submitted on behalf of the petitioner, to show that names of many witnesses from Punjab Institute of Cardiology were already cited in the list of witnesses filed before the Civil Court in time, out of whom anyone could have been summoned for production of record, which was otherwise not accessible to the petitioner, being in their custody and control and copies not madeavailable to the petitioner, however, this aspect of the matter escaped the sight of the revisional Court.

6. Despite publication of notice of this petition, nobody has turned up on behalf of the respondents to contest the case.

7. After careful perusal of the material available on record, we are satisfied that the order dated 04.4.2005, passed by the Civil Judge, which was discretionary in nature, was fully justified on the basis of facts discussed in it. However, the revisional Court, without looking into the limited scope, of section 115, C.P.C., not only entered into unnecessary technical aspects of the case but also misread the record, which resulted in the passing of impugned judgment against the petitioner.

8. This being the position, this petition is converted into appeal and allowed. Consequently, the impugned judgment dated 30.1.2014 is set aside, and the order of the Civil Judge, Lahore dated 4- 4-2005 is restored.