1995 PLP 868 (MLD)

The petitioner filed a suit for declaration, cancellation of documents and permanent injunction. The respondent resisted the suit. The trial Court framed the issues and adjourned the suit for the evidence of the petitioner, who concluded his evidence on 27‑1‑1993 and suit was adjourned for the evidence of the respondent to 2nd of March, 1993 but they failed to produce any evidence and requested for adjournment. Thereafter, they were granted six more adjournments but they failed to produce evidence and ultimately moved an application under Order XVI, Rules 1 and 2, C.P.C. for permission to summon the two witnesses named therein. The petitioner resisted this application. The trial Court, however, accepted the same vide order dated 6‑12‑1993, hence the present revision petition, which was admitted to hearing, notices were issued to the respondents who have appeared and contested the petition.

2. The learned counsel for the petitioner in support of the petition argued that there was no justification, whatsoever, to allow this application. The trial Court failed to proceed in accordance with provision of law, Order XVI, Rules 1 and 2, C.P.C. while deciding the application. The arguments are summed up with the submission that the trial Court failed to appreciate that after allowing numerous opportunities there was no justification whatsoever to grant of application. In this behalf the learned counsel has referred to the case of Ghulam Murtaza v. Muhammad Ilyas and 3 others (PLD 1980 Lahore 495), Haji Sadiq Beg v. Ali Raza (1988 MLD 2020) and Saeed Ahmad v. Muhammad Anwar and others (1989 MLD 4119).

3. On the other hand, the learned counsel for the respondents argued that the order is fully justified and there is no scope for interference in revisional jurisdiction. The learned counsel in this behalf has referred to the case of Mannu Khan v. Ata Muhammad and 2 others (1979 CLC 550).

4. I have given my anxious consideration to the arguments of the learned counsel for the petitioner and gone through the Order XVI, C.P.C. and precedents cases relied by the parties. The justification was that the two witnesses earlier compromised to appear in the Court but subsequently refuse to appear without summons from the Court. This is clearly a concoction. The respondents availed more than half a dozen opportunities before making the application to summon the witnesses. In case there was a grain of truth what has been stated in the application then at the most after 2/3 dates they should have moved the Court for permission to summon the witnesses. This is not all. The respondents have not submitted any list of witnesses whereas it was argued before the trial Court that the names of the said witnesses were omitted from the list inadvertently. The trial Court failed to appreciate that the respondent's application for permission to call unlisted witnesses should show a good cause for omission of the names from the list and the Court while exercising discretion has to recount the reasons for said omission. In this case neither the respondents showed a good cause nor the trial Court exercised the discretion in accordance with the provisions of Rule 1(2, Order XVI, C.P.C. The learned counsel for the petitioner has rightly relied on the case of 'Saeed Ahmad (supra).

5. The upshot of the above discussion is that this revision is allowed with costs. The result is that the impugned order dated 6‑12‑1993 is set aside and the application of the respondents for calling two witnesses is dismissed. H.B.T./D‑43/L Revision allowed.