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Writ Petition No.2931 of 1984, decided on 29th September, 1985.
---O.XVI, r.7-A & O. XVII, r.3--Failure to produce evidence- -Closing of evidence--Adoption of coercive measures by trial Court to effect service of summons on witness--Evidence of respondent was closed by trial Court due to his failure to produce evidence in spite of various opportunities--Finding of Appellate Court that coercive measures were not adopted by trial Court to effect service of summons on witness, held, was not justified--After introduction of r. 7-A of O.XVI, C.P.C. rule of coercive measures was no longer good law.
Mian Ghulam Jafir v. Mian Muhammad Nawaz and another P L D 1977 Lah. 965 rel.
Muhammad Anwar Waraich for Petitioner
Muhammad Iqbal Malik for Respondent No.2.
Date of hearing: 29th September, 1985.
This Writ Petition assails the orders of the appellate authority, dated 16-5-1984 whereby the ejectment orders passed by the Rent Controller were set aside and the case was remanded for fresh decision after giving the tenant an opportunity to produce evidence. The Rent Controller had closed the evidence of the tenant, as a penalty for his failure to produce a summoned witness. It is urged on behalf of the petitioner that the appellate authority has not taken into account the provisions of Order XVI rule 7-A under which it is the respondent's responsibility to effect the service of the summons on the witness.
2. Rule 7-A of Order XVI reads as follows:-
7-A. Service of summons by parties:- Except where it appears to the Court that a summons under this Order should be served by the Court in the same Manner as a summons to a defendant, the Court shall make over for service all summonses under this Order to the party applying therefor.
(2) The service shall be effected by or on behalf of the such party by delivering or tendering to the witness in person a copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court.
(3) Rules 16 and 18 of Order V, shall apply to summons personally served under this rule, as though the person effecting service were a serving officer.
3. In the present case after the evidence of the petitioner/ landlord was concluded on 6-2-1983, the respondent was asked to produce his evidence on 14-3-1983, and for this purpose a summons was delivered by hand to the respondent on 12-3-1984. No evidence was produced on 14-3-1983, 10-4-1983, 3-5-1983, 7-6-1983 or on 30-6-1983. The respondent was told repeatedly that it was his responsibility to produce the evidence. On two occasions costs were awarded against him. When he failed to produce evidence in spite of these opportunities, his evidence was closed. In this background, the interference by the appellate authority on the ground that coercive measures have not been adopted by Court was not justified. After the introduction of rule 7-A in Order X.VI of the C.P.C. the old rule of coercive measures is no longer good law. It was so held in the case of Mian Ghulam Jafir v. Mian Muhammad Nawaz and another P L D 1977 Lah. b65. The failure on the part of the appellate authority to give effect to the new rule calls for striking down of the orders of 16-5-1984.
The writ petition is allowed. The orders of 16-5-1984 are declared to be of no legal effect. There shall be no order as to costs.
N . B . T .
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