2016 PLP 1400 (MLD)

ATIR MAHMOOD, J.

Through this constitutional petition under Article 199 of the Islamic Republic of Pakistan, 1973, the petitioners have challenged judgment dated 07.01.2013 passed by the learned Additional District Judge, Sialkot who maintained order dated 07.01.2011 passed by learned Civil Judge, Sialkot whereby application filed by respondent No.1 for filing list of witnesses and summoning proposed witnesses was accepted.

2. Brief facts of the case are that petitioners filed a suit for declaration with permanent injunction and cancellation of general power of attorney on 11.06.2003. Respondent No.1 filed contesting written statement whereas respondent No.2 was proceeded against ex parte on 03.01.2005. On 07.04.2011, respondent No.1 filed application for production of list of witnesses and summoning some witnesses which was allowed by learned civil court vide order dated 17.05.2011. The petitioners assailed the said order in revision petition. Learned revisional court below dismissed the revision petition vide judgment dated 07.01.2013. Hence this writ petition has been filed challenging both decisions of learned trial court as well as the revisional court.

3. Learned counsel for the petitioners inter alia contends that the impugned decisions are against law; that respondent No.1 was required to furnish list of witnesses within seven days from framing of issues on 14.10.2006 but she badly failed to do so and filed application for the same after about 4-1/2 years of framing of issues; that she could not be allowed to produce the list of witnesses and summoning of witnesses at such a belated stage, therefore, this writ petition be allowed, the impugned judgment and decree passed by learned courts below be set aside and the application of respondent No.1 be dismissed.

4. On the other hand, learned counsel for respondent No.1 has vehemently opposed this writ petition mainly on the grounds that there are concurrent findings against the petitioners; that respondent No.1 was a parda nasheen lady and could not contact her lawyer well in time and allowing application of the respondents in question will also not prejudice rights of the other side, therefore, this writ petition merits dismissal. He has relied upon the law laid down in case reported as Hakim Habibul Haq v. Aziz Gul and others (2013 SCMR 200).

5. Arguments heard. Record perused.

6. Scanning of record reveals that the petitioners filed a suit for declaration with permanent injunction and cancellation of general power of attorney on 11.06.2003. Respondent No.1 filed contesting written statement whereas respondent No.2 was proceeded against ex parte on 03.01.2005. Issues emerging from divergent pleadings were framed on 14.10.2006. The petitioners completed their evidence on 25.03.2010 whereas the respondents-defendants on 28.06.2010. The respondents filed application for production of list of witnesses and summoning some witnesses on 07.04.2011 after 04 years, 05 months and 23 days of framing of issues. Under the law, respondent No.1 was required to furnish list of witnesses within 7 days from the date of framing of issues but she could not do so and filed the application in question at a very belated stage, i.e. after 04 years, 05 months and 23 days. Both the learned courts have just observed that since respondent No.1 had desired to do so, therefore, her application should have been accepted. In my view, the application could be acceded to if there was any plausible reason(s) given by the applicant. I have gone through the whole application of respondent No.1 carefully but failed to find any good cause or reason which may be considered as a valid ground to accept the application at such a belated stage as the only reason given in the application is that respondent No.1 being a parda nasheen lady could not contact her lawyer. Needless to observe that the application was filed on 07.04.2011 whereas respondent lady admittedly appeared in witness box on 28.06.2010 herself when she got recorded her statement. Even if she is considered a parda nasheen lady, she could tell her counsel on the said date, 28.06.2010 when she came to the court, about summoning of witnesses but she failed to do so. Furthermore, the desire of respondent No.1 to produce the witnesses proposed to be summoned was not due to any cause of action accrued to respondent No.1 at later stage as these are witnesses of the document in dispute and were even available at the time of filing of suit and framing of issues. There is nothing on record to establish that respondent No.1 was able to show any cause to produce the proposed witnesses. Mere desire of a party to do an act which was required to be done in a particular manner cannot be considered to be a good cause. Furthermore, being a lady or ignorant of law does not entitle respondent No.1 for any special treatment. Reliance is placed on the dictums laid down by the Hon'ble Supreme Court of Pakistan in case titled Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255). Relevant portion therefrom is reproduced below: " it may be mentioned that the Court is not vested with an unrestricted authority and discretion to pass any whimsical direction and capricious order it feels like, but obviously the order allowing the permission has to conform to "those reasons which are justifiable in the eyes of law", which reflects the judicial application of mind by the Court and the disposal of the request in a judicial manner.

7. There are though concurrent findings against the petitioners but these are not immune from interference by this Court as the judgment and order passed by learned courts below are without any reason. The law relied upon by learned counsel for respondent No.1, i.e. Hakim Habibul Haq v. Aziz Gul and others (2013 SCMR 200) is also not helpful to him as in the referred case there existed a list of witnesses but herein this case respondent No.1 has sought to produce the list of witnesses and summoning of witnesses after about 4 years of framing of issues.

8. Consequent to above discussion, this writ petition is allowed, the impugned judgment and order passed by learned courts below are set aside and the application filed by respondent No.1 is dismissed. MH/A-154/L Petition allowed.