Mst. SARDAR BEGUM Versus ZULFIQAR ALI
ORDER
SHAHID BILAL HASSAN, J.--- Through this constitutional petition, the petitioner has sought indulgence of this Court challenging the vires of order dated 26.09.2013 passed by learned Civil Judge whereby application of respondent No.1 for summoning some witnesses was allowed in a suit for declaration, instituted by the present petitioner, and the order dated 05.10.2013 passed by learned Addl. District Judge, Lahore whereby revision assailing the order passed by learned Civil Judge was dismissed in limine.
2. Factually speaking the petitioner filed a suit for declaration to the effect that sale deed bearing document No.2557 Book No.1 Jild No.756 entered in book of registrar on 08.05.2006 as outcome of forgery, fraud and fictitious. In response to the said suit, the respondent No.1 appeared and filed his contesting written statement. Out of the divergent pleadings of the parties, the following issues were framed on 21.03.2011:-
1. Whether the documents i.e. sale deed No.2557, Jild No.756, Bahi No.1 dated 08.05.2006 in favour of the defendant No.1 is fake, fictitious, forged and has been obtained through fraud, misrepresentation and same be declared as illegal, unlawful, void ab initio and the same be cancelled? OPP
2. Whether the plaintiffs are entitled to the decree for declaration as prayed for? OPP
3. Whether the suit is not maintainable in its present form? OPD
4. Whether the suit has been incorrectly valued for the purpose of court fee and jurisdiction? OPD
5. Whether the suit is barred by law in view of the preliminary objection No.4 of the written statement? OPD
6. Whether the suit is bad for non-joinder of necessary party? OPD
7. Whether the suit has been filed with mala fide intention? OPD
8. Relief.
Both the parties led their evidence, oral as well as documentary, after which the respondent No.1 filed an application before the learned trial Court for summoning the deed writer, local commission and Halqa Patwari concerned. Said application was contested by the petitioner and resultantly vide order dated 26.09.2011, the learned trial Court allowed the application subject to costs of Rs.1000/-. The petitioner, being aggrieved of said order assailed the same through revision before learned Revisional Court concerned which was dismissed vide order dated 05.10.2013 in limine.
3. Learned counsel for the petitioner has inter alia argued that the respondent No.1 filed application for summoning the witnesses in order to fill the lacunae; that the respondent No.1 failed to submit the list of witnesses within statutory period of seven days before the learned trial Court, therefore, he cannot be benefitted through provisions of Order XVI, Rule 2 of C.P.C., but these facts have not been kept in view by learned Courts below, hence, material illegality has been committed; that the impugned orders are not sustainable in the eyes of law as no good cause has been shown by the respondent No.1 for summoning the witnesses; that the names of the witnesses requested to be summoned are not mentioned in the list of witnesses, hence, while passing the impugned orders the discretion has wrongly been exercised in favour of the respondent No.1; therefore, it is just and legal to set aside the impugned orders and application filed by the respondent No.1 for summoning the witnesses be dismissed. Relies on Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 Supreme Court 255.
4. On the contrary, learned counsel for the respondent No.1 have contested the instant writ petition with vehemence by contending that the writ petition is not maintainable against an order passed while exercising revisional jurisdiction, even otherwise, the impugned orders are well reasoned and discretion vested in learned trial Court has rightly been exercised in order to administer safer justice. Prayer for dismissal of instant writ petition has been made. Relies on Mst. Hajra Begum through Legal Heirs v. Mst. Badar-Un -Nissa and others PLD 2013 Sindh 417, Messrs Bayer Crops Science Pakistan through Chief Executive Officer v. Altaf Hussain and 3 others 2013 MLD 323 Sindh, Muhammad Yousaf v. Manzoor Ahmad and another PLD 2006 Lahore 738, Umar Hayat v. Additional District Judge and others 2004 SCMR 1367, Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970, Mian Muhammad Hafiz, etc. v. Aziz Ahmad, etc. 1980 SCMR 557 and order dated 23.09.2013 passed in C.P. No.1278 of 2013 titled Agha Zahid Ali Hilali v. Muhammad Riaz and others.
5. Heard.
6. At the most, while entertaining writ petition against any order, it has to be seen whether the same has been passed without any vested jurisdiction and suffers from jurisdictional defect. But in the present case, both the learned Courts below have jurisdiction to entertain the application as well as revision filed against the impugned order passed by learned trial Court. Under Order XVI, Rule 1(2) of the C.P.C. the learned trial Court can grant permission for summoning of witnesses on showing good cause; when the position is as such the learned trial Court as well as learned Revisional Court have rightly exercised the jurisdiction vested in it. Main object of O. XVI, Rr. 1(2) and 14 of C.P.C. is that entire evidence, which is relevant and necessary for ascertaining truth and deciding issues involved completely and effectively, should come before the Court at any stage of trial before passing of judgment. Reliance is placed on Mst. Hajra Begum through Legal Heirs' case PLD 2013 Sindh 417 and Messrs Bayer Crops Science Pakistan through Chief Executive Officer v. Altaf Hussain and 3 others 2013 MLD 323-Sindh. Even otherwise, the revisional order, in civil litigation, passed in exercise of jurisdiction vested in a Court, cannot be challenged in writ petition. In this regard reliance is placed on Mian Muhammad Hafiz, etc. v. Aziz Ahmad, etc. 1980 SCMR 557, wherein it has been held that:-
"Trial Court though acted in breach of provisions of O.XVI, R. 1 in allowing application and its order an erroneous exercise of jurisdiction, yet such order, held, not without jurisdiction and accordingly remedy of writ petition totally misconceived."
Even this view has further been strengthened in Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970 wherein it has invariably been held by the Apex Court of the contrary that:-
"Revisional order of Court challenged in Constitutional petition--- High Court having rightly held that revisional order arising out of civil litigation, could not be challenged in Constitutional petition, same was not open to challenge on any legal ground---Order passed by High Court was legal and proper---No point of law being involved, petition for leave to appeal was dismissed."
Similar view has been adopted and followed by this Court in Muhammad Yousaf v. Manzoor Ahmad and another PLD 2006 Lahore 738 wherein it has been observed that:-
"Petitioner's revision petition against order of the Trial Court having been dismissed, petitioner filed constitutional petition challenging order passed by revisional Court in exercise of its powers under S.115, C.P.C.---Whether constitutional petition was competent and maintainable against revisional order passed in civil litigation---Held, revisional order arising out of civil litigation could not be challenged in constitutional petition---Even if order passed in exercise of revisional jurisdiction was illegal, but was passed with jurisdiction, same could not be assailed in constitutional petition ............".
7. In the present case, the respondent No.1 has submitted list of witnesses, but he has not mentioned the names of the witnesses, sought to be summoned through Court; despite this fact, the trial Court in exercise of its discretionary jurisdiction can grant permission to summon the witnesses for recording evidence, when same are necessary and helpful to the Court for just decision of the case, because law is made to administer safer justice and to resolve the controversy inter se the litigants to its legitimate end, rather to knock out any litigant on the basis of technicalities. In this regard safer reliance can be placed on Umar Hayat's case 2004 SCMR 1367, wherein it has been held that:-
"Trial Court was competent to grant permission under O. XVI, R. 1(2), C.P.C. for summoning any witness at any stage subject to showing good cause---Trial Court, in exercise of its discretionary jurisdiction had granted permission to summon the witnesses for recording evidence and the order was maintained by Appellate Court as well as by High Court---Supreme Court in exercise of jurisdiction under Art. 185(3) of the Constitution, declined to interfere with the orders---Leave to appeal was refused."
8. In order to reach a just conclusion in the present case and for deciding issue No.1, the evidence of the witnesses, sought to be produced, is necessary and mere on the pretext of non-submission of list of witnesses and non-mentioning of names of witnesses in the list of witnesses, the respondent No.1 cannot be thrown out of the arena of litigation, because same could be due to in-experience or lack of understanding on the part of his counsel, which omission is a good cause. Reliance in this regard can be placed on an unreported judgment of Hon'ble Supreme Court of Pakistan titled Agha Zahid Ali Hilali v. Muhammad Riaz and others bearing C.P. No.1278 of 2013, decided on 23.09.2013, wherein it has been invariably been held that:-
"It is not disputed on the record that examination of scribe and stamp vendor in the litigation on going between the parties is imperative for the just decision of the case. Yes, the respondents did not mention the names of these witnesses in their list of witnesses but when during the course of cross-examination, it was suggested to respondent No.1 by the counsel for the petitioners that he failed to prove the document by not examining the scribe and the stamp vendor, he after having been set on his guards, proceeded to move an application for summoning of the aforesaid witnesses. This shows that omission to summon the witnesses owes its origin to either in-experience or lack of understanding on the part of the counsel or the party. Omission of this type was a good cause to all intents and purpose."
9. So far as the case law referred to by learned counsel for the petitioner, with utmost respect, has no relevance to the facts and circumstances of the present case; therefore, same does not render any assistance or help to the petitioner's cause, especially when constitutional petition is not maintainable and competent against a revisional order passed in exercise of vested jurisdiction.
10. Resultantly, in view of above discussion, while placing reliance on the judgments supra, the instant writ petition being not maintainable is hereby dismissed.
MH/S-91/L Petition dismissed.