MUHAMAMAD DAWOOD vs SUPERINTENDING ENGINEER, OPERATION CIRCLES, WAPDA, QUETTA and 2 others

SHAFIUR RAHMAN, J.---The Plaintiff was granted leave to appeal in order to examine the following questions of law arising in the case:-- "(1) Whether the order dated 26-12-1983 dismissing the suit for non-prosecution was proper in law, in view of the fact that sufficient evidence already existed on the record of the case for passing a decree?

(2) Whether in view of the facts and circumstances, the case should have been remanded for the purpose of examining a witness from WAPDA."

' The facts leading to this appeal are that the plaintiff sought and obtained electricity connection for a tube-well installed at Killi Alizai, Tehsil and District Pishin. On the estimate prepared, he was made liable to pay Rs,1,500 in instalment as installation charges out of a total of Rs,9,000 to be spent on it and for normal electrictiy consumption. After installation he in fact received a bill for Rs,38,636 for installation charges and Rs,16,419 for electricity consumption. He protested. His protests remained unattended. He, therefore, filed a civil suit on 7-4-1979 challenging the levy, the reasons therefor and the motives behind it. The suit was contested. A number of issues were framed which it is not necessary to reproduce at this stage. The appellant was called upon to lead evidence. His three witnesses were examined. He had given a list of seven witnesses including a Sub-Divisional Officer of the WAPDA with the record of extension of the electricity to the tube-well.

Three witnesses had been examined and the remaining were being summoned through the Court at the expenses of the appellant. On 21-111983, the Court finding that none of the witnesses was present, closed the evidence of the Plaintiff and adjourned the case to 7-12-1983 for the statement of the Plaintiff. He did not appear on 7-12-1983 and an adjournment was granted burdening him with costs. On the adjourned date also the appellant was absent. Therefore, his suit was dismissed in default. The plaintiff went in appeal and also filed an application under Order XLI, Rule 27 of the Code of Civil Procedure for leading additional evidence by producing the Sub-Divisional Officer, the official witness in the case and the record in his custody. By the impugned Order the learned Judge for reasons reproduced hereunder, declined to accept the additional evidence and upheld the dismissal in default:-- "In the circumstances of the case I find no reason to allow the appellant to produce the evidence which he has failed to produce in the lower Court by his own negligence. The process fee for the witness now being desired to be produced was paid only once and the Court did issue process but thereafter neither any process fee was paid or any request in that behalf was made in writing; or even verbally by the appellant or his counsel."

3. The learned counsel for the appellant has contended that the oral evidence of the three witnesses existed on the record, that the process fee and the diet money for the official had been deposited, that the note of Ahlmad on the order sheet shows that the summons had issued for him for 21-11-1983 but no effort was made nor any reason recorded as to whether it was served on him or not, and that the closure of evidence on that date was not justified. Even on the date on which the plaintiff was absent, the case deserved disposal on merit by considering the evidence brought on record. In any case, according to the learned counsel for the Appellant, there was full justification for admitting additional evidence in the High Court and giving a decision on merits.

4. We have gone through the original record of the case in the presence of the counsel for the parties and find that one of the witnesses, in fact the main witness in the case having custody of all the record, had been summoned through the Court for which the process fee and diet money had been deposited and the note of Ahlmad shows that the processs had issued to him for 21-11-1983.

However, we do not find any note as to what happened to that summon and what was the reason for non-service or non-appearance of the official witness. On the facts and in the circumstances of the case, it would be too much to burden the plaintiff with the responsibility of producing the official witness and getting produced the official record. The plaintiff, it appears had done all that was legally within his power or was his responsibility. It was, therefore, a case where the presence of the official witness should have been secured and the trial Court having not done it, the High Court should have attended in more meaningful manner to the application for producing additional evidence and the circusmtances in which it was filed.

5. We accept the appeal, set aside the judgments and decrees of the Courts below in the case, and remand the matter to the High Court as a pending appeal before it for disposal in accordance with law after giving opportunity/liberty to parties to produce additional evidence as it considers necessary. The High Court shall either itself examine the official witness and the plaintiff or get them examined through the trial Court for a proper judgment recorded in the case. No order is made as to costs.