BASHIR AHMAD vs FAZAL DIN

This Constitutional petition has been filed to assail the order dated 3-9-1992 passed by the trial Court dismissing the petitioner's application for summoning a witness alongwith the relevant record and the order dated 23-12-1992 passed by the learned Additional District Judge dismissing the petitioner's revision petition.

2. ' Briefly stated the facts of the case are that respondent No. 1 filed a suit for possession of land measuring 6 Kanals, 14 Marlas situated in the revenue estate of Khudian, Tehsil and District Kasur.

The petitioner contested the suit and filed his written statement alleging therein that respondent No. 1 had executed an agreement to sell in his favour on 2-6-1984, a copy whereof was annexed to the written statement. The trial Court framed issues on pleadings of the parties and recorded the evidence of the plaintiff/respondent No. L on 26-1-1992. Thereafter, the petitioner submitted an application on 10-5-1992 for summoning the witness namely Muhammad Ameen Shah (the petition writer having custody of the relevant register containing entries about the agreement). The said application was rejected by the trial Court on 3-9-1992. The petitioner filed a revision petition against the said order which was also dismissed by the learned Additional District Judge vide order dated 23-12-1992.

3. The main controversy between the parties revolves around the genuineness of the agreement to sell dated 2-6-1984. It could be proved through the statements of the marginal witnesses but the evidence of the scribe was also important. It could definitely enable the Court to reach a just conclusion in the matter. The petitioner had placed a copy of the agreement on the record with his written statement. In his application for summoning the witness alongwith the relevant register he had explained that earlier he was informed that the witness had died. The Courts below did not advert to the said explanation and merely held in the order that there was no sufficient justification for non-inclusion of the name of the witness in the calendar of witnesses. True, under the provisions of Order 16, Rule, 1 of the C.P.C, the petitioner was bound to submit a list of witnesses within 7 days after the settlement of issues and thereafter a party was not to be permitted to call a witness not included in the list except with the permission of the Court and A after showing good cause for the omission of the said witness from the list. This provision of law should be liberally construed to enable the parties to produce their evidence and to save them from mere technical knock-out. Ii is l significant to mention that in his own suit for specific performance of the same contract the petitioner had stated before the trial Court that he was unable to produce the scribe of the agreement as he had expired. He could not produce any other person to identify the handwriting of the scribe whereupon the suit was decided against him. Under these circumstances, the explanation furnished by the petitioner that he believed on information conveyed to him that the scribe had died appears to be reasonable. Had it not been so, he would have definitely produced him in his own suit. Therefore, the petitioner's application ought to have been allowed by the Courts below to secure the ends of justice.

4. For the foregoing discussion, this petition is accepted, the impugned orders passed by the Courts below are declared to be without lawful authority and of no legal effect and the petitioner's application for summoning the scribe of the agreement alongwih the relevant record is allowed, leaving the parties to bear their own costs.