2022 PLP 121 (MLD)

RAHEEL KAMRAN, J.

Through this civil revision, the petitioners have challenged the order dated 19.06.2013 passed by the learned Civil Judge Lahore whereby application of the respondent under Rule 1, Order XVI read with Section 151, C.P.C. for summoning of witness in the suit for damages instituted by the respondent was allowed.

2. Relevant facts briefly are that on 13.04.2009, the respondent instituted a suit for damages of Rs.51,259,920/- against the petitioners, which was rigorously contested by them. Out of divergent pleadings of the parties, as many as 08 issues were framed by the learned trial court on 09.07.2009 when the parties were directed to file their respective list of witnesses and certificate of readiness within seven days and the case was fixed for evidence of the respondent on the date fixed. The respondent/plaintiff produced two witnesses i.e. PW-1 and PW-2, whose evidence was recorded, and they were cross- examined as well. However, on 01.04.2013, the respondent/plaintiff tried to produce its Deputy Manager Finance, Muhammad Ramzan along with record as another witness, which remained unsuccessful on being seriously opposed by the petitioner's side. Subsequently, on 05.04.2013, the respondent filed an application under Rule 1 of Order XVI C.P.C. before the learned trial court seeking permission of the court to produce the aforementioned witness, which was allowed by the learned trial court vide order dated 19.06.2013 ("impugned order").

3. Learned counsel for the petitioners contends that the impugned order has been passed in excess of jurisdiction vested in the learned trial court; that name of the witness sought to be produced was not mentioned in the list of witnesses filed by the respondent; that no good cause for the omission of the said witness from the list of witnesses was shown by the respondent; that the provisions of Rule 1(2) of Order XVI, C.P.C, particularly the Lahore High Court amendment have not been appreciated and applied; that the impugned order is in violation of the law enunciated on the subject by the august Supreme Court of Pakistan in the case of Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255); that permission to produce witness has been granted to the respondent in routine without judicious application of mind; and that the impugned order falls within the scope of expression "case decided" for the purpose of Section 115 C.P.C., therefore, the titled civil revision is maintainable. Reliance has been placed on judgments in the cases of S. Zafar Ahmad v. Abdul Khaliq (PLD 1964 (W.P.) Karachi 149); Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq (1999 SCMR 799); Rana Taleh Muhammad Khan and another v. Additional District Judge Sheikhupura and 12 others (PLD 1979 Lahore 145); Muhammad Ishfaq and others v. Additional District Judge and others (2019 CLC 183); Ghulam Mustafa and 4 others v. Additional District Judge and 5 others (2018 CLC 1937); Rehmatullah v. Abdul Ghani (1986 CLC 858); Nestle Milkpak Ltd. v. Classic Needs Pakistan (Pvt.) Ltd. and others (2006 SCMR 21); Messrs National Security Insurance Company Ltd. and others v. Messrs Hoest Pakistan Ltd. and others (1992 SCMR 718); Rehman Dad and another v. Maj. Raja Sajwal Khan and others (1976 SCMR 350) and Abdul Aziz Shah and another v. Abdul Ghafoor and another (1985 SCMR 221).

4. Learned counsel for the respondent on the other hand states that the impugned order does not amount to a "case decided" within the purview of Section 115 C.P.C. and this Court could not interfere with the order impugned. Reliance in this regard has been placed on the case of Habibullah Khan v. Pak Cement Industries Limited (1969 SCMR 965). He adds that this case is clearly distinguishable on facts from the case of Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255) relied upon by the petitioner inasmuch as witnesses sought to be summoned in that case were official witnesses, which is not the case here; that the considerations that govern exercise of discretion by the trial court under Rule 1(2) of Order XVI, C.P.C. include: plausible explanation by a party for failure to include name of the witness in the list; prejudice, if any, to the opposite party; and inconvenience to the Court , as enunciated by the august Supreme Court in the case of The Australasia Bank Limited v. Mangora Textile Industries, Swat (1981 SCMR 150) and the Petitioners have failed to point out what prejudice, if any, has been caused to them in their defence by the impugned order and how has it added to the inconvenience of the trial court. He finally contends that the permission of the court was required only for summoning of a witness by the court and the scope of Order XVI did not extend to the witnesses that the parties sought to produce voluntarily without invoking the summoning powers of the court, as held by the august Supreme Court in the case of Amjad Khan v. Muhammad Irshad (2020 SCMR 2155).

5. Heard. Record perused.

6. Before considering merits of the case, it is imperative to consider the question of maintainability of the titled Revision Petition. Admittedly, no appeal is provided in law against an order passed by a trial court allowing an application to produce any witness. The remedy of revision under Section 115, C.P.C. against such an order depends on whether or not it can be termed as a "case decided" and whether the order impugned suffers from any illegality or material irregularity in the exercise of its jurisdiction vested in the subordinate court. The expression "case decided" is not necessarily confined to a final order, rather it may, in particular facts and circumstances of the case, relate to an interlocutory order passed at any stage of the proceedings including an interim order requiring application of mind.1 An order passed in an improper exercise of jurisdiction, if not interfered with, may lead to an injustice or hardship when an interim order from its very inception appears to be or has an effect of the final order.2 Therefore, there is no absolute bar against entertaining revisional jurisdiction against an interlocutory order. In fact, there are several cases wherein august Supreme Court of Pakistan has developed jurisprudence on the exercise of jurisdiction under Rule 1(2) of Order XVI C.P.C. in proceedings arising from revisional jurisdiction including the cases of Australasia Bank3 and Amjad Khan

4. The objection regarding maintainability of the titled civil revision is devoid of any merit, therefore, rejected.

7. To examine the case on merit, it is imperative to consider the text of sub-rules (1) and (2) of Rule 1 of Order XVI C.P.C. which at the relevant time read as follows:

1. Summons to attend to give evidence or produce documents.-(1) Not later than seven days after the settlement of issues, the parties shall present in Court a certificate of readiness to produce evidence, along with a list of witnesses whom they propose to call either to give evidence or produce documents. (2) A party shall not be permitted to call or produce witnesses other than those contained in the said list, except with 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.

8. A literal reading of Rule 1 of Order XVI C.P.C. above suggests that in sub-rule (1) an obligation has been upon the litigants to provide a certificate of readiness to produce evidence, along with a list of witnesses whom they propose to call either to give evidence or produce documents within seven days after settlement of issues. Sub-rule (2) consists of two parts: first one stipulates a restriction on a party to the litigation to call or produce witnesses other than those contained in the said list; the second part creates an exception to the restriction contemplated in the first part whereby a discretion has been conferred upon the court to grant permission to call or produce any witness. The applicant seeking permission of the court is required to show good cause for the omission of the said witnesses from the list and the court granting permission has an obligation to record reasons for so doing.

9. The object of Rule 1(1) of Order, XVI C.P.C. is that no one should be taken by surprise in the course of the trial and parties, before commencement of trial, must be conscious, aware and fully prepared as to what kind of evidence was expected to be given by the witness of the opposite side so that they make necessary preparations for cross examinations etc. and to prevent any concoction and fabrication of the evidence.5 The above approach is quite similar to the one prevailing in the courts of England and Wales where litigation is conducted on the principle of "cards on the table". This means that parties to litigation have an obligation to disclose to the other side, at the appropriate point in time, all the evidence it holds which either assists its own case or assists the other side's case. Their objective is to ensure that the litigation is run as efficiently, cost-effectively and proportionately as far as possible.

10. It is noteworthy that the words "or produced" in between the words "call" and "witnesses" were inserted in sub-rule (2) of Rule 1 of Order XVI C.P.C. through the Lahore High Court Amendment dated 02.10.2001.6 Prior to the said amendment, in the case of Ghulam Murtaza7, a larger Bench of this Court dilated upon the distinction between witnesses called through the process of the court and witnesses voluntarily produced and it was held therein: "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, 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 1 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."

11. The Hon'ble Supreme Court, in the case of Musarrat Bibi8, approved the above meaning given to the word "call" in Order XVI, Rule 1, C.P.C. It appears that this led the Lahore High Court to make amendment in Order XVI, Rule 1 by inserting the words "or produce" in between the words "call" and "witnesses" in Rule 1(2) of Order XVI, C.P.C. requiring the litigant to provide a list of witnesses in respect of both kinds of witnesses. The said sub-rule does not draw a distinction between the witnesses to be produced by the parties themselves and those to be summoned through the process of the court, for permission of the court has been made a requirement under Rule1(2) of Order XVI, C.P.C. for both. Reliance of the respondent on Amjad Khan's case9 for alleged distinction between "call" and "produce" to suggest that no permission was required to produce a witness is misplaced for the reason that the decision assailed in that case was of the Hon'ble Islamabad High Court to which, as held by the Hon'ble Supreme Court itself, the Lahore High Court amendments had no application.10 Redundancy cannot be attributed to the Lahore High Court amendment in Rule 1(2) of Order XVI, C.P.C. which squarely applies to the instant case which has arisen from an order passed by a subordinate court within the territorial jurisdiction of this Court. Plea of respondent is accordingly rejected being devoid of any force.

12. Notwithstanding the above restriction imposed by Lahore High Court amendment in Rule 1(2) of Order XVI, C.P.C., it is still open for the court to allow production or summoning of the witnesses at a belated stage upon showing of a "good cause" and for "reasons to be recorded". No absolute criteria could be set as a benchmark to test if a case of omission of a name from the list of witnesses was on account of "good cause", however, the reason must be legally justifiable and bald claims that it shall be in the interest of justice or it shall facilitate the court in deciding the matter would not be a legally sufficient reason for that purpose.11

13. Likewise, Rule 1(2) of Order XVI C.P.C. requires the court to record reasons for the exercise of its discretion. Such requirement has been imposed apparently to keep a judicial check on unbridled and absolute discretion of the court. What qualifies to be valid reasons for the grant of permission under Rule 1(2) ibid has been a subject matter of judicial discourse. One view in such discourse is that reasons to be recorded by the trial court for the permission granted under the said rule must be confined to the "good cause" shown (i.e. the explanation advanced) by the party for the omission to include name of witness sought to be called or produced.12 The other end of the spectrum of this discourse takes a broader view by liberating the reasons to be recorded by the trial court from the confines of explanation furnished by the litigant for the omission of the name of a witness in the list and includes elements such as importance of the witness in the trial; prejudice, if any, to the opposite party; and inconvenience of the trial court.13 The primary focus of such a view appears to be on how the permission sought, if not granted, may curtail access to justice of the applicant, how much administration of justice is likely to be burdened in the proceedings before the court if the permission sought is granted, and how the fair trial right as enshrined in Article 10A of the Constitution, shall be curtailed by the grant or refusal of such an application. The focus surely shifts away from technical knockout of the litigants for their omissions and inefficiencies.

14. Application of the law reiterated herein above to the facts of this case requires perusal of the record, in particular application of the respondent seeking permission, reply to the application and the order passed therein.

15. From perusal of the application moved before the trial court, it is manifest that permission was sought from the court on behalf of the respondent to produce Muhammad Ramzan, its Deputy Manager Finance to depose before the learned trial court and produce record pertaining to the case. It was further alleged therein that the record was necessary for a just and fair decision of the case and pertained to the issues that had been highlighted in the pleadings. It was also averred therein that the record pertained to the payments made by the respondent and consequential loss/damages suffered by it due to non-performance of the defendants and that mere technicalities should not be allowed to thwart the ends of justice and such like cases should be decided on the basis of evidence led by the parties pertaining to merits of the case.

16. Petitioners, on the other hand, vehemently opposed the application, inter alia, stating in their reply that the proposed deponent was alien to the proceedings as his name did not figure in the list of witnesses produced by the respondent; that the request of the respondent was contrary to the mandate of the law i.e. Rule 1 of Order XVI, C.P.C.; that the application was filed in clear desperation and despondence with a view to fill up the lacuna and shortcomings of its case at this belated stage when evidence of PW1 and PW2 had already been recorded; that the application was filed with mala fide intention as the authenticity of the documents proposed to be produced was highly questionable, and allowing those private documents at belated stage tantamount to giving a carte blanche to the respondent to place forged and fabricated evidence on the record as and when it pleased them; that the respondent was attempting to place private documents on record after an inordinate delay without offering any satisfactory explanation for the same; no good cause had been shown for non-production of the documents with the plaint; and that the whole exercise was an afterthought, therefore, acceptance of the application was in direct contravention of the rules and procedure laid down by the Code of Civil Procedure.

17. On 19.03.2013, the impugned order was passed, the operative part whereof reads as follows:

18. It is apparent from the application under Rule 1 of Order XVI, C.P.C. filed by the respondent that no cause whatsoever, let alone any "good cause", was shown by the respondent for its omission to include name of Muhammad Ramzan, its Deputy Manager Finance in the list of witnesses. It is manifest from the order impugned that application of the respondent was allowed by the trial court "in the interest of justice" apparently for the reason that the respondent itself was producing the said witness voluntarily, implying therein that no summoning powers of the court were being invoked, which is an irrelevant consideration since the Lahore High Court amendment introduced in the Rule 1(2) of Order XVI, as fully explained above. No findings are recorded on the importance of the witness in the trial, prejudice, if any, caused to the petitioners and inconvenience, if any, caused to the court. It is obvious that the permission to produce witness has been granted as a matter of routine without recording reasons showing judicious application of mind.

19. For the foregoing reasons, the instant petition is accepted, the impugned order is set aside and application of the respondent filed under Rule 1 of Order XVI, C.P.C. shall be deemed to be pending which shall be decided afresh by the learned trial court in accordance with law through a reasoned order within a period of one month from the date of receipt of a copy of this judgment. ZH/S-97/L Revision allowed.