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Civil Revision No. 397 of 1963, decided on 8th May 1964.

O. X VI, r. 10 ‑Witness duly served but absent when case called for hearing ‑I)uty of Court to enforce attendance of such witness.

S. 115‑Revision‑Trial Court not exercising discretion where it ought to have, in favour of petitioner‑Order of trial Court, if allowed to stand, bound to result fn great hardship to petitioner‑Set aside.

The petitioner got the summons served on his witness for the date fixed for hearing of the case. On that date the witness was found absent when the case was called for hearing and the Civil Judge proceeded to close the evidence. Immediately after the order closing evidence was passed, the petitioner made an application that the witness who was present in the Court at the time may be examined. But the Civil Judge decided not to examine him.

Held, that in the peculiar circumstances of the case, the Civil Judge ought to have exercised the discretion in favour of the petitioner by allowing him to examine the witness who was present when the application was made and since the trial Court decided otherwise, the order if allowed to stand was bound to result in great hardship to the petitioner.

Abdul Hafeez for Petitioners.

S. Sibtul Hassan for Respondent No. 1.

Nemo for Respondent No. 2.

Date of hearing: 8th May 1964.

This civil revision is directed against the order of the Civil Judge 1st Class, Peshawar, dated the 9th of November 1963.

2. The facts of the case briefly stated are that the petitioner, who is a plaintiff in a civil suit, had to examine Doctor Muhammad Zarif as a witness. He was granted an adjournment for the purpose and it was for him to arrange for the presence of Doctor Muhammad Zarif on the next date of hearing in the suit. On that date when the case was called the witness was not present and the learned Civil Judge proceeded to close the evidence.

3. It is contended on behalf of the petitioner that he got Doctor Muhammad Zarif served for the date fixed and thereafter it was the duty of the Court to enforce the presence of the witness if he was found absent when the case was called. There is force in the argument which must prevail. The petitioner filed with the revision application the summons served on Doctor Muhammad Zarif from which. It is clear that he accepted service on 2nd November 1963. Doctor Muhammad Zarif was not actually present when the case was called and this is clear from the application which the petitioner made to the trial Court Immediately after the order closing his evidence was passed if the witness was not present after he had accepted service for the date fixed, it was primarily the duty of the Court to enforce his attendance and not to apply the guillotine, The application which the petitioner filed an the same day shows that the witness was present when the application was made to the trial Court, but the learned Civil Judge decided not to examine him as he had already passed the order closing the evidence of the plaintiff. I think in the peculiar circumstances of the case, the learned Civil Judge ought to have exercised the discretion in favour of the petitioner by allowing him to examine the witness who was present when the application was made and since the trial Court decided otherwise the order if allowed to stand is bound to result in a great hardship to the petitioner.

4. I would, therefore, accept the revision petition, set aside the order of the trial Court and direct that the petitioner should be given the opportunity to examine Doctor Muhammad Zarif as his witness and then the trial Court should proceed to decide the suit in accordance with law. I make no order as to costs.

S. Q. Revision accepted.

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