2020 PLP 1760 (MLD)

MUZAMIL AKHTAR SHABIR, J.

Through this constitution petition, the petitioner has called in question order dated 25.02.2019 passed by the learned Civil Judge, Vehari, whereby in a suit for declaration and cancellation of Mutation No.587 dated 30.11.1998 filed by the respondents Nos.3 to 7, who are his mother and sister, against the petitioner and the remaining respondents, his application for submission of list of witnesses has been dismissed and has also called in question judgment dated 30.09.2019 passed by learned Additional District Judge, Khanewal dismissing his civil revision against the said order. Learned counsel for the petitioner submits that while passing the order / judgment the learned Courts below have failed to properly appreciate real controversy in issue and have not taken into consideration the fact that earlier the petitioner had filed list of witnesses in the Court which was misplaced by Ahlmad of the Court, therefore, orders passed by both the Courts below suffer from jurisdictional defect and are not sustainable in the eyes of law and liable to be set aside and application of the petitioner merits to be allowed. To support his version, the petitioner has relied upon cases / reported as 2004 SCMR 1367 (Umar Hayat v. Additional District Judge and others), 2019 MLD 79 (Famir Asghar v. Asghar Ali and 2 others) and 2005 MLD 1713 (Naeem Akhtar v. Additional District Judge and others).

2. Both the Courts below have observed that although the petitioner stated that he had filed application for submission of list of witnesses earlier immediately after framing of issues on 02.06.2016 which has been misplaced due to change of different courts to which case was successively transferred but there is nothing available on the record to support such version of the petitioner. Even today although the petitioner has vehemently argued the case but could not dislodge the said findings of facts recorded by the learned Courts below. Even the assertion of the petitioner that list of witnesses was earlier available on the record, has not been established from the record. The petitioner filed the application for placing on record the list of witnesses after more than two years of framing of issues and the reason mentioned in the said application has not found to be sufficient by the courts below and the said findings of facts are not found to be erroneous by this court also. So far as the afore referred judgments relied upon by learned counsel for the petitioner is concerned, the facts of the said cases are distinguishable from this case for the reasons that in the cases of Umar Hayat and Naeem Akhtar supra applicants had been allowed by the learned Trial Courts to produce list of witnesses and petitions against the said order were dismissed by the Courts above upholding the said orders of learned Trial Court while in this case learned Courts below have declined the petitioner's request for producing the list of witnesses, therefore, the said judgments are not applicable to this case. Furthermore, the case of Famir Asghar relied upon by learned counsel for the petitioner is also distinguishable as the said case relates to an election dispute pending before the Election Tribunal wherein this Court allowed the petitioner to file list of witnesses by observing that after framing of issues the Trial Court never required the parties to produce such list. Relevant portion of the said judgment is reproduced below: "

6. Importantly, perusal of the file neither reveals any order passed after framing of issues by the Court requiring the parties to produce list of witnesses nor it was argued at bar by the learned counsel for the respondent that such order was ever passed." While in the present case learned Trial Court at the time of framing the issues vide order dated 02.06.2016 specifically directed the parties to produce list of witnesses along with certificate of readiness. Relevant portion of the said order is as under:- "

7. Parties are directed to submit their list of witnesses along with certificate of readiness within seven days. Now to come up for evidence of plaintiffs for 14.07.2016." Hence, the facts of this case also differs from the aforesaid case relied upon by learned counsel for the petitioner. The petitioner has failed to make out a case for allowing him to produce list of witnesses at this stage by showing a good cause for the said relief, hence is not entitled to any relief in view of the principles laid down by the Hon'ble Supreme Court of Pakistan in the judgment reported as "Muhammad Anwar and others v. Mst. Ilyas Begum and others" (PLD 2013 SC 255).

3. In view of the above discussion, the concurrent decisions of learned Courts below do not suffer from any illegality or jurisdictional defect and the said courts were justified in declining the application of the petitioner for submission of list of witnesses which findings are well founded and warrants no interference by this Court, hence the instant writ petition is dismissed being devoid of merits. SA/M-31/L Petition dismissed.