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Writ Petition No. 405 bf 1982, decided on 27th November, 1982.

‑‑ Art. 9 and Civil Procedure Code (V of 1908), O. XVII, r. 3‑Court giving number of opportunities to petitioner to produce evidence‑Court after due warning to petitioner closing his evidence on his failure to produce witness‑Petitioner's conduct appearing to be misusing of process of Court to delay proceedings‑ Order of closing evidence of petitioner, held, lawful and not interfered in constitutional jurisdiction.‑[Evidence].

‑‑ Production of‑Party to proceedings cannot be burdened with responsibility of producing witnesses once they have made request and paid necessary fee for summoning ‑Circumstances of case showing party missing process of Court is not producing witnesses only to delay disposal of case‑Trial Court competent to take remedial steps and take penal action apart such party.

Mst. Bashir Bibi v. Amin‑ud‑Din and 9 others P L D 1973 S C 45 ref.

A. R. Shaukat for Petitioner.

Arshad Ul1ah Chatha for Respondents.

Date of hearing : 27th November, 1982.

A suit for pre‑emption instituted on behalf of respondents Nos. 1 to 4 is pending in the Court of Assistant Commissioner/Collector, Hafizabad. He gave a number of opportunities to the present petitioner who is defending that suit to produce his evidence but on his failure to produce evidence, his evidence was closed by the learned Collector on 14th May, 1981. The petitioner challenged the orders in revision before the Board of Revenue but his revision petition ‑was dismissed on 5th November, 1981. The petitioner has challenged the orders of the Collector and the Board of Revenue in the present writ petition.. The writ petition was admitted to consider the question whether the petitioner's case could be closed by the trial ‑Court when the coercive process regarding appearance of witnesses had not been exhausted by the trial Court.

2. The case of the petitioner is that he has deposited the necessary process fee but the witnesses given in the list appearing on Annex D' in the writ petition have not appeared for no fault of the petitioner as they have not effectively been served. The petitioner relies on the case of Mst. Bashir Bibi v. Amin‑ud‑Din and 9 others PLD1973SC 45 in support of his contention that no responsibility can be placed on a party to proceedings to produce the witnesses itself who have been summoned through the process of the Court. The case of the respondents Nos. 1 to 3, on the other hand, is that more than a score of opportunities were given to the petitioner but the case was closed only when the Court was satisfied that the process of the Court was being used to delay the disposal of the case.

3. There is no quarrel with the proposition that a patty to a proceedings cannot be. burdened with the', responsibility fee of producing its witnesses once he has made a request IInd paid the necessary for summoning the witnesses through the Curt but the fact remain that if the circumstances of a particular case show that a party is using the process of the Court only to delay the disposal of the case, I am in no doubt that the trial Court is competent to take the remedial steps. In the present case the petitioner furnished a list of sixteen witnesses to be summoned by the Court. Four or five persons among them have already been examined, but the list submitted by the petitioner is such that quite a few of these witnesses would be unnecessary. The learned counsel appearing for the petitioner has sub mitted that while he has, not prepared the case from this angle, he is willing to concede that the list could be curtailed. Considering the fact that the respondents Nos. 1 to 4 have filed a suit to claim possession of the property as tenants of the land and have led evidence to support it the evidence ‑ of sixteen persons including four Patwaris anal three officials of the Food Department nothing but an attempt to delay the disposal of the case. It may be mentioned here that one Polwari and one official of the Food Department is among those whose evidence has already been recorded. A copy of the record of proceedings has been furnished by the respondents. It is evident that over a dozens opportunities were given to the petitioner to produce his evidence and on each of these occasions the petitioner asked for further time.

4. Considering the circumstances of the case the matter does not involve a simple question of responsibility of ‑ production of witnesses, but on the other hand, the process of Court is being misused to delay the proceedings. I am sure that the Court is competent to remedy the situation and take penal action against the petitioner. Needless to say that adequate warning was given to the petitioner that his evidence will be closed if he did not comply with the orders of the Court. Such orders cannot be dismissed as orders without lawful authority. I find no merit in the writ petition. It is dismissed with costs.

M. Y. M.

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