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Civil Revision Petition No. 142 of 1955 decided on 3rd October 1955 for revision for the order of Muhammad Ayub Khan, Senior Civil Judge, Shahpur at Sargodha, dated the 7^th May 1955.

O. X11, r.1‑Party summoning not at fault‑Prayer for re‑summoning may not be refused merely on ground that party had already been given three opportunities and the case was more than a year old‑When Court may refuse summons

The plaintiff applied for re‑summoning of a witness and the Court refused summons on the ground that the plaintiff had already had three opportunities and the case was more

than a year old. From the plaintiff's point of view the witness was a material one and had in fact been served but had failed to appear

Held, that three opportunities to a party to produce a witness, and the case being more than a year old are circumstances insufficient in themselves to refuse a prayer for the re summoning of the witness. It is only when either a party is guilty of negligence in connection with the production of a witness or there are good grounds for believing that the production of a witness within a reasonable time is not possible that the assistance of Court may be refused. The fact that a witness has been served would, apart from other considerations, be sufficient to allow further adjournment except in cases where the party 'had already been in default and having disentitled itself to the assistance of Court by issue of process had either given an undertaking that he would be responsible for production of witnesses or the Court had validly attached a condition to the grant of adjournment that no further adjournment would be granted even if the witness was served.

Iftikhar‑ul‑Haque Khan for Petitioners.

F. M. Anwari, Advocate for the Advocate‑General, Punjab for Respondent.

‑This is an application in revision against the order of the Senior Civil Judge, Sargodha, refusing to summon a witness. The petitioners before me are the plain tiffs, and the suit out of which this revision arises has been fled against the Federation of Pakistan for recovery of money on account of bricks supplied to the Government. According to the allegations of the plaintiffs, a contract had been entered into on behalf of the Government by the Commanding Officer, Risalpur Cantonment, and it was Jemadar Nazeer Hussain who acted in this contract as the agent of the Commanding Officer, Later Jemadar Nazeer Hussain was tried and convicted of misappropriation of Government funds, and Abdul Hakeem plaintiff appeared as a witness against him. Its order to prove their contract the plaintiffs have summoned this Nazeer Hussain as a witness. He had been summoned for three dates but did not appear. The last of these dates was the 7th May 1955, on which the plaintiffs applied that he be resummoned and the Court passed the following order :‑

" The plaintiffs had been given the last opportunity for producing Nazeer Hussain witness. The case is more than a year old. There does not appear to be any reason able ground for grant of an adjournment. Therefore, the application of the plaintiffs is dismissed ".

This order leaves much to be desired. There are three facts which this order does not mention. They are (1) the witness was an important one in fact to prove their contract it was necessary for the plaintiffs to summon him (2) the plaintiffs were not to blame in any way in the matter of non‑service of summonses and (3) the witness had been served for that date.

An affidavit had been filed on‑ behalf of the plaintiffs on before the learned Senior Civil Judge to the effect that Nazeer Hussain had been evading service, that Abdul Hakeem plaintiff had gone to him at Lahore and the witness had promised that he would appear on the 7th May 1955, but that a few days before the hearing, Abdul Hakeem plaintiff received a letter from him. saying that his brothers had prevented him from appearing as a witness for the person on whose evidence he had been convicted, and that he would not appear as a witness for the plaintiff unless they paid him Rs. 1,000. This letter had been placed on the record. From a copy of the report of the process‑server on the back of the summons produced before me I find that the summons which had been issued for 7^th May 1955 had actually been served. The report of the process‑server says that he had gone to Nazeer Hussain witness and that the witness had taken written objections which were being produced along with the report. These objections are not before me, (I have not sent for the records) but the character of the objections is not material. It is sufficient that the witness had been served.

That three opportunities had been given to a party to pr oduce a witness, and that the case was more than a year old are circumstances insufficient in themselves to refuse a prayer for the recommencing of the witness. It is the duty of the Court to afford the parties all assistance in the production of evidence. It is only when either a party is guilty of negligence in connection with the production of a witness or there are good grounds for believing that the production of a witness within a reasonable time is not possible that the assistance of Court may be refused. The learned Senior Civil Judge does not seem to have applied his mind to the circumstances of the case, for he omitted to mention the important matters to which I have already referred. In the A present case it is clear from the record that while the plaintiffs were making all efforts for his production the witness was avoiding appearance. The fact that a witness has been served would, apart from other considerations, be sufficient to allow further adjournment except in cases where the party had already been in default and having disentitled itself to the assistance of Court by issue of process had either given an undertaking that he would be responsible for production of witnesses or the Court had validly attached a condition to the grant of adjournment that no further adjournment would be granted even if the witness was served.

I accept this revision and set aside the order refusing to summon Nazeer Hussain witness. The Court will now allow a proper opportunity to the plaintiffs for the production of the witness. The Court will now issue warrant or such other process as it may deem proper in this respect. There is no order as to costs.

A.H. Petition accepted.

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