1991 C L C 1470

[Lahore]

Before Raja Afrasiab Khan, J

Mst. SHARIFAN BIBI and others‑‑‑Petitioners versus

ASGHAR ALI and others‑‑‑Respondents

Writ Petition No. 1899 of 1990, heard on 17th February, 1991.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑O.XVIII, R.2‑‑‑Sufficient powers having been given to Court to record evidence of

any witness at any stage of suit, application for summoning witnesses whose evidence
was essential for just, decision of case, made at the time when case was fixed for
arguments, was rightly accepted by Court. ‑ [Witness].

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑No writ could be issued in aid of injustice.

Tufail Muhammad and another v. Raja Muhammad Zia Ullah Khan. Claims
Commissioner, Lahore and another P L D 1965 SC 269 and Federation of Pakistan and
others v. Hajiuhammad Saifullah Khan and others P L D1989 SC 166 ref

Ch. Muzammal Khan for Petitioners.

Mian Ghulam Rasool and Farooq Bedat,‑Addl. A.G for Respondents.

Date of hearing: 17th February, 1991.

JUDGMENT

A suit for joint possession was instituted by Mst. Sharifan Bibi, Mst. Zainab Bibi and
Mst. Murad Bibi, petitioners, against Asghar Ali, respondent No.l, before the learned
Senior Civil Judge, Jaranwala, on 5‑3‑1985. The respondent contested the suit by filing
written statement. However, he did not file a list of witnesses within seven days. As
many as five issues; arising out of the pleadings of the parties, were framed by the
learned trial Judge on 5‑3‑1986. An application was moved by the respondent on
17‑12‑1988 for summoning the witnesses, mentioned therein. The necessary expenses
for summoning the witnesses were also deposited by the respondent on 19‑12‑1988.
The application was disallowed by the learned trial Judge on 14‑1‑1989 on the ground
that the witnesses could not be summoned at that stage of the case. The evidence of
three witnesses produced by the respondent was recorded on 14‑1‑1989. Admittedly,
evidence of respondent has not been closed so far. Abdul Wahid Lambardar and Sardar
Muhammad Khewatdar were not present on the date fixed for recording evidence and
as such the evidence was closed under Order XVII, Rule 3, CY.C. qua the said two
witnesses on 14‑1‑1989.

2. According to the learned counsel, this order was never assailed any further. Another
miscellaneous application was moved by the respondent on 2‑4‑1989 for summoning
these witnesses when the case was fixed for arguments. The application was dismissed
by the learned trial Judge on the same date. Against this order a revision petition was
filed by respondent No.1 which was heard and accepted by the learned Additional
District Judge on 1‑3‑1990, holding that recording of evidence of Abdul Wahid
Lambardar and Sardar Muhammad Khewatdar was essential for the just decision of the
case. Against this order, this Constitutional petition has been moved.

It is contended by the petitioners that no list of witnesses was filed by respondent No.l
within seven days and as such witnesses could not be produced by him in the case on
account of a bar imposed by law. It is argued that evidence of the contesting
respondent was closed under Order XVII Rule 3 C.P.C. and in this view of the matter
order became final qua the parties. It is submitted that in presence of this order, the
respondent cannot be permitted under law to produce witnesses in support of his case.
Learned counsel urges that no reasonable cause whatsoever was shown by respondent
No.l for production of additional evidence at such a late stage. It is maintained that the
fact that evidence of Abdul Wahid Lambardar and Sardar Muhammad Khewatdar was
essential was not at all a consideration tinder law for recording their evidence.

4. I hive heard the learned counsel for the parties at considerable length and have read
the record with care. 1 am not convinced with (lie arguments of the learned counsel for
the petitioners. The application dated 2‑4‑1989 was moved by the respondent
presumably under Explanation‑I of Rule 2 of Order XVIII, read with Section 151
C.P.C. Under the said provision of law, the Civil Court has ample powers to summon
the witnesses. Explanation‑I is reproduced below for reference:‑--

"Explanation I. Nothing in this rule shall affect the jurisdiction of the Court, of its own
accord or on the application of any party, for reasons to be recorded in writing, to
direct any party to examine any witness at any stage".

This provision of law gives sufficient powers to the Civil Court to record evidence
orally witness at any stage of the suit. This may be done of its own accord or on
application of any party for reasons to be recorded therein. Order dated 1‑3‑1990
passed by the learned Additional District Judge, shows solid reasons for recording
statements of Abdul Wahid Lambardar and Sardar Muhammad Khewatdar. It is
mentioned in the order that these two witnesses were the attesting witnesses of
mutation. This being so, they were the necessary witnesses in the case. Learned
counsel was unable to point out any legal flaw much less jurisdictional defects in the
impugned order which of course has been passed in advancement of justice. It is well
settled that no writ can issue in aid of injustice. Reliance is placed on Tufail
Muhammad and another v. Raja Muhammad Zia Ullah Khan, Claims Commissioner,
Lahore an another (P L D 1965 S C 269) and Federation of Pakistan and others v. Haji
Muhammad Saifullah Khan and others (P L D 1989 S C 166). Respectfully following
the rule laid down in the precedent cases Constitutional petition is dismissed, leaving
tile parties to bear their own costs.

IJ.B.T./S‑873/L Petition dismissed.

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