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Appeal No. LHR‑281 of 1980, heard on 24th November, 1982.
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--- S. 36 read with Civil Procedure Code (V of 1908), O. XVI, r. 14 Procedure‑Examination of witnesses‑Witness desired to be examined by a party‑Cannot be examined as Court witness.
Naeem Sultan Butt for Petitioner.
Mian Muhammad Yasin for Respondent.
Date of hearing : 24th November, 1982.
This petition is for the transfer of the case or in the alternative treating fresh inquiry. It was entertained long before I took over and none of the parties at any stage disclosed the prayer made in this petition the ; respon dent brought cross‑objection also. On account of the pendency of this petition the proceedings in the learned lower Court are laying stayed. The petitioner had examined respondent No. 2 with the leave record of the petitioner. The learned counsel for the petitioner wanted to examine the witness without oath because he wanted only to get the record placed before the Court, but learned Presiding Officer examined respondent No. 2 as Court witness. According to rule 14 of Order XVI, C.P.C. a party cannot be exa mined as the Court witness. The underlying idea appears to be that both the parties have a right to cross‑examine the Court witness ; a party to the case is examined as such he will be cross‑examined by his own counsel by putting leading questions. The learned Presiding Officer acted against the provision of law by examining respondent No. 2 as Court witness.
2. Since the learned Presiding Officer who examined respondent No. 2 as Court witness has been transferred there is no need to transfer the case. The learned lower Court however is directed to give opportunity to produce witness of his own choice according to law: The petition and the cross‑objections are disposed of accordingly. The record of the lower Court should be sent back immediately so that it may proceed with the case.
A. E.
Orders accordingly.
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