2013 M L D 41


2013 M L D 41

[Peshawar]

Before Qaiser Rashid Khan, J

Mst. SHAMSHAD BEGUM---Petitioner

Versus

Mst. TAHMEEL BEGUM and 7 others---Respondents

Writ Petition No.698 of 2011, decided on 24th April, 2012.

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

----O. XVII R. 3 & S. 12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Petitioner had filed an application under S.12(2), C.P.C.---Petitioner sought summoning of a witness through process of court, however  her  evidence  was closed  under  provisions  of O.XVII R. 17, C.P.C.---Validity---When the petitioner herself mentioned her name in the list of witnesses, then it was the duty of Trial Court to have asked petitioner to record her own evidence and in case of her failure/neglect/refusal to do the same, the impugned order could have been passed---Mere request of petitioner regarding absence of other evidence of the petitioner should not have been made the sole ground for striking off her defence under O. XVII R. 17 C.P.C. when otherwise she had examinal four witnesses in support of her plea---High Court directed Trial Court to give opportunity to the petitioner to record her statement---Constitutional petition was allowed, in circumstances.

(b) Administration of justice---

----Cases should be decided on merits and for safe administration of justice, courts were under legal obligation not to knock out parties strictly on procedural and technical grounds alone---Courts of law do not offer a helping hand to any party to his/her case to success, but then  there  were  certain  down-trodden,  dispossessed,  handicapped  and weaker sections  of  society  to  whose  rescue  the  process  of  law  must come forth---Given the parameters of law, nobody should simultaneously  be  permitted  to take  liberty  with  the  process  itself.

            Qazi Muhammad Shahryar for Petitioner.

            Nasir Mahmood Khan Tahirkheli for Respondents.

            Date of hearing: 24th April, 2011.

JUDGMENT

            QAISER RASHID KHAN, J.---Brief and essential facts leading to the instant petition are that petitioner, namely, Mst. Shamshad Begum, had filed an application under section 12(2), C.P.C. before the learned Civil Judge Ghazi challenging the validity of judgment and decree in Suit No.2/1 decided on 11-5-2005 on the grounds of fraud, misrepresentation and being without jurisdiction. She also prayed for suspension of the execution proceedings. The respondents/defendants contested the application by filing replication thereto and from the pleadings of the parties necessary issues were framed and evidence of the parties was recorded. Meanwhile, the petitioner filed an application before the learned trial Court for summoning one Wazir Khan son of Aman Khan through the process of the court as his name was duly incorporated in the list of witnesses. The said application was opposed by the respondents/defendants and was ultimately dismissed by the learned trial Judge, vide order dated 7-9-2010 which was maintained in revision by the learned Additional District Judge Ghazi vide judgment and decree dated 25-10-2010 and ultimately evidence of the petitioner was closed under Order XVII Rule 3 C.P.C. by the learned trial Judge vide order dated 2-12-2010 which was further upheld in revision vide judgment and decree dated 26-4-2011, hence this writ petition.

2.         Learned counsel for the petitioner argued that the impugned orders are patently illegal and thus liable to be set aside. He submitted that the summoning of P.W. Wazir Khan son of Aman Khan was essential from the viewpoint of the petitioner being marginal witness to the Iqrarnama dated 16-10-1997 vide which late Jamroz had sold the suit houses in favour of the petitioner but her request was not attended to by both the courts below and in a cursory manner, her plea was turned down. He urged that the closure of evidence under Order XVII Rule 3, C.P.C. applies to the suit and not to the application under section 12(2), C.P.C. He further argued that despite the fact that the petitioner was very much in attendance before the learned trial court to record her statement, but still her defence was struck off under Order XVII Rule 3 C.P.C.  in a very summary and cursory manner by the learned trial court and upheld by the learned revisional court thereby causing great miscarriage of justice and that the impugned orders are liable to be set aside and the P.W. Wazir Khan be summoned through the process of the court for recording his statement and further that the petitioner be also permitted to record her statement for the just decision of the case and in order to meet the ends of justice.

3.         Conversely, learned counsel for the respondents/defendants supported the impugned judgments and decrees on the grounds enumerated therein.

4.         Arguments heard and record perused.

5.         The record reveals that the case has a very long and chequered history. As per the averments in the application filed by the petitioner under section 12(2),  C.P.C. against  the  judgment  and  decree  dated  31-3-2003 in case titled Jamroz v. Asif Ali, the predecessor-in-interest of respondents Nos.1 to 6 namely, Jamroz filed a declaratory suit against the respondent No.7 (Asif Ali) to the effect that the two residential houses mentioned in the plaint were constructed and owned by Jamroz over the land belonging to him. During the course of proceedings before the learned trial court, Jamroz died and his legal heirs were impleaded as plaintiffs. Finally after recording evidence the learned civil judge 1st class Ghazi decreed the suit in favour of the legal heirs of  Jamroz  on  11-5-2005. The petitioner avers in her application that her marriage was solemnized with Asif Ali (respondent No.7) in the year 1995 and after two years of her marriage, she was ousted by her husband and she started living with her parents at village Topi, District Swabi. Subsequently, a jirga was brought to her by her husband and the predecessor-in-interest of respondents Nos.1 to 6 namely, Jamroz. In order to patch up the matter between the spouses, two houses by way of guarantee were given to the petitioner in front of jirga members through a proper sale deed by Jamroz and its possession wais also handed over to her and in one of the houses, the petitioner was residing herself and had rented out the other one and that her husband had without any reason started residing with the respondents Nos.1 to 6 and that on 11-10-2006 she came to know that in order to grab her two houses, the respondents Nos.1 to 6 got a decree in their favour without the knowledge of the petitioner on the basis of fraud and misrepresentation.

6.         After the reply was submitted by the respondents Nos.1 to 6 to the said application, the learned trial court vide his judgment and order dated 26-2-007 after hearing the learned counsel for the parties, held that the matter called for probe and accordingly framed issues and thus directed the parties to submit their list of witnesses. Accordingly, both the parties submitted their respective list of witnesses and thereafter, statements of four P.Ws. were recorded.

7.         On 24-7-2010, the petitioner submitted an application before the learned trial court that one of the witnesses namely, Wazir Khan son of Aman Khan whose name had been mentioned in the list of witnesses was being pressurized by the respondents party not to record his statement and thus prayed that he be summoned as a court witness which was replied to by the respondents. However, the said request was turned down  by  the  learned  trial  judge  vide  order dated 7-9-2010  against  which the revision petition filed by the petitioner was also dismissed on 25-10-2010 and a writ petition was filed against the said judgments and orders but since the main application under section 12(2), C.P.C. had been finally decided by the learned trial court, therefore, the writ petition had become infructuous and was dismissed on 26-10-2011 albeit with certain observations that "the petitioner is allowed to raise same plea before the competent court where the matter is sub judice".

8.         During the pendency of the writ petition, on 2-12-2010 the learned civil judge-I, Ghazi struck off the right of evidence of the petitioner under Order 17 Rule 3 C.P.C. whereagainst the revision petition also met the same fate vide judgment dated 26-4-2011 of the learned Additional District Judge, Ghazi.

9.         It appears from the record that probably the learned civil judge, Ghazi was swayed more by the earlier round of litigation between the parties vis-a-vis summoning P.W. Wazir Khan which finally came up before this court and though the Writ Petition No.386 of 2011 of the petitioner was dismissed on 26-11-2011, but the petitioner was allowed "to raise the same plea before the competent court where the matter is sub judice". In the very order dated 2-12-2010, the learned trial Judge has noted that the "petitioner through counsel and in person present". Such being the case and where the petitioner had herself mentioned her name at serial No.1 of the list of witnesses, then it was the bounden duty of the learned trial court to have asked the petitioner to record her own evidence and in case of her failure/neglect/refusal to do the same, he could have passed the impugned order. The mere request of the learned counsel for the petitioner regarding the absence of the other evidence of the petitioner should not have been made the sole ground for striking off the defence of the petitioner under Order XVII Rule 3, C.P.C. when otherwise she had examined four P.Ws. in support of her plea. It needs no reiteration that cases should be decided on merits and for the safe administration of justice, the courts are under legal obligation not to knock out the parties strictly on procedural and technical grounds alone. It goes without saying that courts of law do not offer helping hand to any party to take his/her case to success, but then there are certain drown trodden, dispossessed, handicapped and weaker sections of the society to whose rescue the process of law must come forth. However, given the laid down parameters of law, nobody should simultaneously be permitted to take liberty with the process of law itself.

10.       As far as the role of P.W. Wazir Khan is concerned, his name has been duly mentioned by the petitioner in the list of witnesses furnished by her before the learned trial court as he is allegedly the marginal witness to the Iqrarnama/Bainama dated 16-10-1997. The petitioner being an aged pardanashin lady is feeling handicapped in view of our own social and cultural milieu to personally call Wazir Khan to depose as a witness vis-a-vis the said Iqrarnama and, therefore, the petitioner had all along been praying for summoning him through the process of the court which proved to be the proverbial cry in the wilderness. The learned revisional court also escaped sight of the other factors culminating in the order dated 2-12-2010 of the learned civil judge, Ghazi and upheld his order. With such peculiar background of the matter, the learned trial court should give a dasti summon to the petitioner for procuring the attendance of P.W. Wazir Khan and also provide her with an opportunity to record her own statement and thereafter proceed with the matter in accordance with law and  procedure.

11.       The instant writ petition is thus allowed in terms of the observations recorded above.

KMZ/367/P                                                                                         Petition allowed.


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