2023 PLP 37 (YLR)

SAFDAR SALEEM SHAHID, J.

The instant constitutional petition is directed against the order dated 15.07.2019 passed by learned Civil Judge, Bahawalnagar, whereby application filed by the petitioner seeking permission to submit list of witnesses was dismissed and the judgment dated 12.11.2019, whereby the learned Additional District Judge, Bahawalnagar, dismissed his revision petition.

2. Brief facts necessary for disposal of the instant writ petition are that Muhammad Zulfiqar Ali respondent No.3 filed a suit for specific performance of contract on the basis of oral agreement to sell against the petitioner. In the suit, issues were framed on 10.03.2016 and parties were directed to submit their list of witnesses within 7 days but the petitioner had no knowledge about the said order. When evidence of respondent No.3 was closed then it came into the knowledge of the petitioner that list of witnesses was not submitted by him within time. The petitioner filed an application before learned Civil Judge (concerned) for submitting list of witnesses which was dismissed vide order dated 15.07.2019. Against the said order, petitioner filed a civil revision before learned Additional District Judge, which was also dismissed vide judgment dated 12.11.2019.

3. Learned counsel for the petitioner argued that the orders of both the Courts below have been passed ignoring the relevant law and facts of the case, therefore, same are not sustainable in the eyes of law; on 10.03.2016 petitioner was not present in Court whereas his learned counsel was busy in other direction cases and it was not in the knowledge of the petitioner regarding direction of the learned trial Court to submit list of witnesses within the stipulated period; valuable rights of the petitioner are involved in the matter and he has to prove his case through production of evidence; the matters should be decided on merits and no body can be knocked out on the basis of technicities.

4. Learned counsel for respondent No. 3 on the other hand resisted the arguments and submitted that orders of both the Courts below have been passed quite in accordance with law; petitioner could not submit list of witnesses within time as per direction of the learned trial Court, therefore, his application was rightly dismissed.

5. Arguments heard. Record perused.

6. It has been noticed that Muhammad Zulfiqar Ali respondent No.3 filed a suit for specific performance of contract on the basis of oral agreement to sell against the petitioner. After framing of issues, parties were directed to submit their list of witnesses within stipulated period but petitioner could not file the same in time. Thereafter petitioner filed an application before learned Civil Judge, for submitting list of witnesses which was dismissed vide order dated 15.07.2019. Against the said order, civil revision filed by the petitioner also met with the same fate. Perusal of order sheet appended with the petition reveals that on 10.03.2016 application filed by respondent No.3 for temporary injunction was allowed and after framing of issues learned trial Court directed the parties to submit list of witnesses and certificate for readiness to produce evidence within 7 days. The order dated 10.03.2016 was passed by the learned trial Court in presence of both the parties. Thereafter, suit was adjourned on so many dates for recording the evidence of the plaintiff. The evidence of respondents' witnesses was recorded and learned counsel for the petitioner conducted cross-examination upon them. On 08.11.2018 plaintiff produced his documentary evidence and then the case was fixed for evidence of the petitioner/ defendant. On 23.01.2019 learned counsel for the petitioner filed an application before the learned trial Court for submitting list of witness at a belated stage which was dismissed by learned trial Court on 15.07.2019. It means that learned counsel for the petitioner had been appearing in the Court but did not file application for submitting list of witnesses. However, learned counsel for the petitioner requested for only one opportunity in order to submit list of witnesses, even on payment of costs as valuable rights of the petitioner are involved the matter. In the circumstances, keeping in view the request of the learned counsel for the petitioner and the settled principle of law that technicalities of procedure ought to be avoided and matters should be decided on merits as held in the case of Mst. Bundi Begum v. Munshi Khan and others (PLD 2004 SC 154), Syed Sharif ul Hassan through LRs. v. Hafiz Muhammad Amin and others (2012 SCMR 1258) and Zohra Bibi and another v. Haji Sultan Mahmood and others (2018 SCMR 762), 1 think that it will meet the ends of justice if the petitioner is granted one opportunity for submitting list of witnesses, subject to payment of costs of Rs.10,000/-.

7. In view of what has been discussed above, the instant petition is allowed, the impugned order dated 15.07.2019 and judgment dated 12.11.2019 are set aside subject to payment of costs of Rs.10,000/-. The learned trial Court is directed to grant only one opportunity and fix a date for submitting list of witnesses by the petitioner. It is, however, clarified that if the costs imposed is not paid or list of witnesses is not submitted on the date fixed as directed, the learned trial Court shall proceed with the matter in accordance with law. MHS/Q-7/L Petition allowed.