2016 PLP 101 (CLCN)

MAHMOOD AHMAD BHATTI, J.

Through this writ petition, Feroz Ahmad Khan, the petitioner has assailed the validity of the order dated 7.4.2014 and the judgment dated 24.9.2014 passed by the learned Civil Judge, Ferozwala and an Additional District Judge, Ferozwala, respectively, whereby an application moved by the petitioner under Order XVI, C.P.C., seeking to proceed against Mst. Zubaida Bibi and Mst. Surriaya Bibi, respondents/defendants was turned down by the learned trial Court and the revision petition directed thereagainst was also dismissed.

2. Leaving aside the unnecessary details, the case of the petitioner is that he instituted a suit for declaration, cancellation of documents and possession as well as perpetual injunction. The aforementioned ladies entered appearance and filed written statement, controverting the stance of the petitioner/plaintiff. As a result, the learned trial Court framed issues on 22.10.2010. By the very same order, the parties to the suit were directed to file lists of their respective witnesses within 07 days. It so happened that the petitioner complied with the aforesaid order, but for one reason or another, the defendants did not furnish the requisite list. Be that as it may, the petitioner concluded his evidence, whereafter the defendants were called upon to refute the case set up by the petitioner. Before the defendants could produce witnesses in support of their case, the petitioner filed an application under Order XVI, C.P.C., praying therein that since the defendants had not filed the list of witnesses in the wake of the order dated 22.10.2010, they were to be "punished and dealt with severely".

3. The learned trial Court seized of the suit dismissed the application of the petitioner vide order dated 7.4.2014. Instead of taking it lying down, the petitioner agitated the matter before the learned revisional Court calling for its interference under section 115, C.P.C. Again, he failed to persuade the learned Additional District Judge, Ferozwala, District Sheikhupura to take a different view. Consequently, his revision petition was dismissed vide order dated 24.9.2014.

4. The learned counsel for the petitioner has reiterated the contentions raised by him in the application moved under Order XVI, C.P.C. before the learned trial Court. He has also placed reliance on a judgment of the Hon'ble Supreme Court of Pakistan reported as "Muhammad Anwar and others v. Mst. Ilyas Begum and others" (PLD 2013 255). In his estimation, it was observed by the apex Court that unless a party furnishes a list of witnesses within 7 days of the framing of the issues, it would stand debarred from examining any witness. It is further argued by him that since the defendants failed to comply with the order dated 22.10.2010 passed by the learned trial Court requiring them to submit a list of witnesses within 07 days, they were guilty of committing contempt of Court and as such were to be punished under the Contempt of Courts Ordinance, 2003.

5. I have heard the learned counsel for the petitioner at length and perused the record annexed to the writ petition with his assistance.

6. There is no provision in the Civil Procedure Code under which a party who fails to furnish a list of witnesses within 07 days of the framing of the issues may be punished or dealt with sternly. The reliance of the learned counsel for the petitioner on the judgment of the Hon'ble Supreme Court of Pakistan reported as "Muhammad Anwar and others v. Mst. Ilyas Begum and others" (PLD 2013 SC 255) is misconceived. There is not even a remote reference made therein that a party having failed to comply with the provisions of Order XVI, Rule 1, C.P.C. would be thrown out of the arena or its defense would be struck off or it would be punished under the Contempt of Courts Ordinance, 2003. Furthermore, it is for the party concerned to decide as to how it would like to proceed within the framework of law to prove its case and to refute the case of the other party. In the instant case, the private respondents/defendants had not made any move to summon any witness through the process of Court, obviating the need for submitting a list for witnesses. True, they could not be allowed to call and produce an official witness or even a private witness for that matter, without the provision for the list of witnesses, as has been held authoritatively by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Anwar (supra). The law laid down therein is not to be stretched to the extent of debarring the parties from examining any witness they intend to produce on their own, without the help and process of the Court. In point of fact, this was so held by a Full Bench of this Court in the case reported as "Ghulam Murtaza v. Muhammad Ilyas and 3 others" (PLD 1980 Lahore 495). It would be advantageous to reproduce two paragraphs from this illuminating judgment, which read as under:- "

8. The words 'produce' and 'call' are not at all synonymous. Word 'produce' according to note 1 of the Oxford English Dictionary, Volume VIII, has been described to mean "to bring forward, bring forth or out; to bring into view, to present to view or notice; to offer for inspection or consideration, Exh. often used of bringing forward witnesses, as well as evidence, or vouchers, in a Court of, law." The words "witnesses in attendance" used in rule 4 of Order XVIII further clarify the position that witnesses who are brought by the parties in Court have to be examined by the Court. Now comparing the word 'call' used in the term of summoning cannot equate with word produce and in attendance used in rules 2 and 4 of Order XVIII, C.P.C. Comparing the terms of art used in Order XVI and Order XVIII it is manifestly clear that the Legislature only placed fetters for the call of witnesses through Court for which a list has to be submitted within the prescribed period under the present rule. Had the Legislature intended to place similar restrictions on the production of witnesses by the parties without the aid of the Court, the word 'produce' should have been inserted in between the words 'proposed to call' and either to give evidence in rule. I and in-between the word 'to call' and witness used in sub-rule (2) of Order XVI, C.P.C. Having not done so, the intention of the Legislature is, therefore, absolutely clear that the parties are at liberty to bring witnesses along with them on the day when the case is fixed for evidence and the Court cannot refuse recording of their evidence according to rule 4 of the said Order. In Mian Karim Bakhsh v. Firm Thakar Dass Ram Lal and others (AIR 1941 Lah. 38) Bhide and Din Muhammad, JJ. while considering former Order XVI, rule 1 of the C.P.C. observed. "Order XVI, rule 1 is a technical one and in the absence of any prejudice to either party, Court is not justified in refusing to examine the witnesses on the ground that they were not mentioned in the list. The rule gives the Court discretion to allow witnesses to be examined even if they are not mentioned in the list if it is satisfied that there are sufficient reasons for doing so. The rule should not be applied mechanically." "

9. We have no doubt in our mind that the Law Reforms Ordinance, 1972 altered rule 1 of Order XVI to achieve speedy disposal of cases so as to make it imperative for the parties to file the list of witnesses in Court within seven days of the settlement of issues. Rules 2 and 4 of Order XVIII should have been deleted or amended in the light of the amendment made in rule 1 of Order XVI. The list is, therefore, imperative for summoning of the witnesses by the parties, and in the exercise of discretion vested in them for condoning the delay for good cause under this rule the Courts should exercise the power benevolently. But there is hardly anything which has taken away the right of the parties to produce witnesses in Court of their own and the refusal of the Court to record the statement of witnesses in attendance. The irresistible conclusion, therefore, would be that the parties will have to comply with the amended rule 1 of Order XVI if they desire to produce their witnesses under the authority of the Court, but they cannot be stopped from producing evidence in Court on the day fixed for evidence".

7. It would not be out of place to make a reference to another judgment of the Hon'ble Supreme Court of Pakistan reported as "Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq" (1999 SCMR 799) in which the construction put by a Full Bench of this Court on Order XVI, Rule 1, C.P.C. reproduced hereinabove was approved.

8. The approach of this Court that a party cannot be debarred or precluded from producing witnesses on its own and without seeking the intervention of the Court to call a witness has been consistent, as is evident from the judgments reported as "Mst. Rukhsana Bibi v. Muhammad Ansar" (2006 YLR 666), "Haji Muhammad Tufail v. Muhammad Iqbal" (2005 MLD 688) and "Naeem Akhtar v. Additional District Judge and others" (2005 MLD 1713). In the latter case, it was held as under:- "

5. It is true that without disclosing sufficient reason and obtaining permission from the Court nobody can be permitted to summon or produce the witnesses other than those contained in list submitted under Order XVI, rule 1, C.P.C., yet at the same time the Court should also not sit as idle spectator without considering the fault of non-submission of the list which is usually considered as act of the counsel. A litigant is not aware of procedural requirements of law and to file list of witnesses being a part of procedural activity, a counsel engaged by the parties has to perform such act and for the fault of a counsel especially when no serious prejudice is caused to the other party, no one can be penalized. It is an established principle of law that Court should not deny a legal right to a party just on the basis of technicalities or non -performance of procedural requirement causing no prejudice to the other party. In the present case admittedly no list was submitted by learned counsel for respondent No.3 within stipulated time but the authority conferred on the Court to allow summoning or producing witnesses not named in the list or non-submission of list, is always there i.e. Order XVI, rule 2, C.P.C., to meet such -like eventualities or inaction on the part of a counsel. In the present case the learned trial Court or for that matter the learned Additional District Judge while allowing respondent No.3 to summon/produce the witnesses not named in the list, sufficiently compensated the petitioner by burdening respondent No.3 with a cost of Rs.500, suitably enhanced by the revisional Court to Rs.1500.

6. When asked, how the petitioner is prejudiced by the evidence of a person, named in the application whose evidence prima facie is of general nature, the learned counsel for the petitioner failed to come out with any solid reason except to reiterate the non- performance of procedural requirement of Order XVI, rules 1 and 2, C.P.C. I am therefore, satisfied that non-submission of list of witnesses within time was purely due to inaction of the learned counsel for respondent No.3 and the learned two Courts below by passing the impugned order have not committed any illegality or irregularity but have corrected the procedural wrong causing no prejudice to the petitioner. Since the provisions of procedural law are always meant for promoting safe administration of justice and not thwarting justice as held in the case of "Bundi Begum v. Munshi Khan (PLD 2004 SC 154) hence, the two Courts below were perfectly right in ignoring the rigours of Order XVI, C.P.C., as amended by Lahore High Court Rules, especially when no prejudice has been caused to the petitioner and the evidence required to be produced is general in nature, therefore, even if the orders of two Courts below are not in conformity with the requirements of Order XVI, C.P.C., but as the said orders are in accordance with principles of natural justice requiring that no person be condemned unheard, hence, I find no force in this petition which is accordingly dismissed in limine."

9. A close parallel to the case of the petitioner is reported as "Faiz Ahmad v. Zahoor-ul-Haq Siddiqui and another" (2012 MLD 922), wherein it was held by this Court as under:- "No penal provision for the dismissal of the suit is incorporated in Order XVI, Rule 1, C.P.C. in case the plaintiff of a suit does not submit a list of witnesses in the time prescribed in the Rule, therefore, the application as moved by the defendants/respondents was misconceived and should not have been entertained by the learned Civil Judge. The case-law reported as Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq (1999 SCMR 799) has different facts as in the said reported judgment the right of the defendants to produce the evidence was closed and the defendant of the suit filed an application subsequently to produce the witnesses before the learned Trial Court, which application was dismissed by the learned Civil Judge and the order of the dismissal of the application was upheld. The facts of the said reported case are not relevant to the facts of the present case. In the instant case the petitioner has not so far produced any evidence and the case was fixed for allowing the petitioner/plaintiff to produce evidence when the defendants of the suit moved an application for the dismissal of the suit on the ground that the petitioner/plaintiff did not file any list of witnesses. As this application was misconceived, the learned Civil Judge without applying his mind upon the facts of the case passed an order dated 11-12-2009 of closing the right of the petitioner to produce his witnesses of his own, which was not at all prayed for in the application moved by the respondents and which order even could not have been passed as the petitioner has every right to produce the witnesses of his own without involving the process of the Court during the trial of the case. Reliance is placed upon, Ghulam Murtaza v. Muhammad Ilyas and 3 others (PLD 1980 Lahore 495), Iqbal Parekh and 4 others v. Karachi Building Control Authority (K.B.C.A.) through Chief Controller of Buildings (C.C.O.B.) Karachi and 4 others (2008 CLC 1334) Mst. Rukhsana Bibi v. Muhammad Ansar (2006 YLR 666), Mst. Aisha Bibi v. Mst. Kaneezan Bibi and others (1988 CLC 2218), Haji Muhammad Tufail v. Muhammad Iqbal (2005 MLD 688)".

10. It seems that the Sindh High Court has also taken the same view regarding the interpretation of Order XVI, Rule 1, C.P.C. In the case reported as "Tabassum Khurshid v. Sardar Abid Iqbal and another" (2008 CLC 1337), it was held by it as under:- "It is to be noted that non-submission of list of witnesses does not take away the right of the parties to produce witness in Court on their own and if the witness is present in Court the Court cannot refuse to examine him".

11. For what has been stated above, the learned Courts below did not commit any material irregularity nor did they exceed the jurisdiction vested in them. The order dated 24.09.2014 passed by the learned trial Court and the judgment dated 07.04.2015 passed by the revisional Court being unexceptionable, this petition is devoid of merits and is hereby dismissed in limine. ZC/F-30/L Petition dismissed.