1979 PLP 291 (CLC)

2. The plaintiff-respondent submitted the list of its witnesses on 8th of November 1973, after the settlement of issues, to be examined by the Court. The list comprised 5 witnesses. After having examined Hassan Ali as P. W. 1 who was shown at Serial No. 5-in the list, one Ali Muhammad delivery clerk of Volkart (Pakistan) Ltd., was produced for examination purposes. The petitioner objected to his production and examination as witness on the ground that since his name was not included in the list of witnesses already filed in the Court, therefore, his statement could not be recorded. This objection was however, rejected on the ground that list of witnesses submitted in the Court by the respondent was of those persons who were sought to be summoned through Court and the witnesses who were otherwise to be examined without having been summoned through Court, their names were not required to be mentioned in the list. The petitioner has now come up to the High Court and has challenged the validity of the said order.

3. According to the old provision as contained in rule 1 of Order XVI, C. P. C. with regard to summoning and attendance of witnesses the parties could obtain at any time after the institution of the suit on application to the Court, summonses to persons whose attendance was required either to give evidence or to produce documents. The said rule has now been made sub-rule (3) of Order XVI; C. P. C. after the promulgation of Law Reforms Ordinance XII of 1972. Sub-rules (1) and (2) of rule 1 which have been added by the said Ordinance read as follows :- "

1. Summon; to attend, to give evidence or produce document.-(1) Not later than seven days after the settlement of issues, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents. . (2) A party shall not be permitted to call witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; and if the Court grants such permission, it shall record reasons for so doing."

4. The amended provisions lay down that not later than seven days after the settlement of issues the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and further that no party shall be permitted to call witnesses other than those whose names are contained in the said list and if the Court grants said permission it shall record reasons for doing so. According to the old provision the parties before the Court were at liberty to summon the witnesses through Court at any time, after having deposited their diet money and necessary expenses. They could also produce witnesses other than those summoned through Court by bringing with them. The comprehensive list of all the witnesses to be examined in the Court as such was liable to be submitted before the start of evidence of either of the parties. The procedure in this behalf has since undergone change by the addition of sub-rules (1) and (2) of rule 1 of Order XVI, C. P. C. It is now required by law to submit list of all the witnesses to be produced in the Court not later than seven days after the framing of issues. If a party to the suit wants to examine a witness not included in the list of witnesses already submitted, it shall not be permitted to do so except with the permission of the Court and after showing cause for the omission to include the name of the said witness in the aforesaid list. The amended law aims at making it known to the parties to the suit as to what kind of witnesses and evidence is likely to be produced against each other. After the settlement of issues on the basis of the pleading of the parties it should become clear to the parties to the suit as to what kind of evidence is to be led by them in order to prove their respective contentions. It is, therefore, very much desirable to give indication in this behalf to the parties concerned.

5. In the present case the view taken by the learned trial Court is erroneous and is based upon the old law according to which list of the witnesses to be summoned through Court was necessary to be submitted at any time after the settlement of issues and before the start of evidence while the list of the witness otherwise brought by a party for examination purposes on the date of hearing was to be submitted on that very date. As discussed above the procedure has been changed every party to the suit is now required by law to submit complete list of the witnesses to be examined by it not later than seven days after the framing of the issues.

6. It has been argued on behalf of the respondent while relying upon the amendment as made by Lahore High Court in the unamended rule 1 and now sub-rule (3) of Order XVI, to the effect that no party who has begun to call his witnesses shall be entitled to obtained process to enforce the attendance of any witness again whom process has not been previously issued or to produce any witness not named in a list which must be filed in the Court on or before the date on which the hearing of evidence on his behalf commences and before the actual commencement of the hearing of such evidence, without an order of the Court made in writing and stating the reasons therefor, that the list of witnesses summond through Court or otherwise brought along with him, by a party can be produced before the actual commencement of evidence and as such witness Ali x Muhammad, as mentioned above has been rightly allowed to be examined. I am afraid this contention has no force. The amendment as referred to above was introduced by the Lahore High Court to rule V of Order XVI as it stood unamended before the promulgation of Order XII of 1972. There is the amendment made by the High Court to sub-rules (1) and (2)-of rule 1 of the Order providing that list of witnesses shall be filed not later than seven days after the settlement of issues. The only difference between the amended provision and the High Court amendment as preferred to above is that under the amended law list of witnesses is required to be submitted not later than seven days after the framing of issues, while according to the High Court amendment such list can be submitted before the actual commencement of evidence. However, so far as the examination of a witness not named in the list is concerned that cannot be made except with the permission of the Court for which reasons are liable to be given. The High Court amendment as such does not help the respondent as Ali Muhammad's statement was allowed to be recorded by the learned trial Court without giving any reason while his name was not included in the list of witnesses submitted by the respondent previously though even under the High Court amendment his statement cannot be recorded by the trial Court without giving reasons in this behalf.

7. Since the learned trial Court bas passed the impugned order in violation of the amended provision as contained in sub-rules (1) and (2) of rule 1 of Order XVI, therefore, the same cannot be sustained in law and the same is hereby set aside.

8. So far as the order burdening the petitioner with payment of Rs. 100 as cost for setting aside the ex parte proceedings is concerned the same also cannot be sustained in law. The circumstances show that petitioner's counsel reached the Court as soon as ex parte order was passed and he thereupon submitted application for setting aside the order. According to the High Court Rules and Orders the Court should not dismiss a case in default or proceed ex parte if any of the parties is not present at the first call. In that case file of the case should be kept aside and after some time case should be recalled. If after having waited for sufficient time in the second part of the day a party does no appear in the Court then necessary order under the law would b passed against him. In the present case there is no indication whatsoever on the file that the order, proceeding ex parte against the petitioner was passed after having waited for sufficient time. It appears to have been passed when the learned counsel for the petitioner did not appear in the Court at the first call of the case. Such hasty action on the part of the trial Courts cannot be approved as it ultimately results in delaying the disposal of cases instead of their early decision. In this view of the matter the order burdening the petitioner with payment of Rs. 100 is hereby set aside.

9. For the aforesaid reasons the civil revision is hereby accepted without any order as to costs and the case is remitted to the learned District Judge, Lyallpur for entrusting the same to competent Court to decide as to whether there is sufficient cause for recording the statement of Ali Muhammad, P. W.

2. If the answer is found to be in the affirmative then his statement may be recorded. The previous statement recorded as such will not have any effect in law. M. A. R Revision accepted.