2004 PLP 876 (YLR)

Khalid Ikram Khatana for Petitioner. Muhammad Akhtar for Respondents Nos. 1 to

3. This writ petition has been filed to call in question the impugned order dated 27-5-2003 passed by the learned Additional District Judge, Chiniot, dismissing the revision petition of the petitioner and affirming the order dated 14-10-2002 dismissing the application filed by the petitioner for submission of list of witnesses.

2. The facts giving rise to the present writ petition are to the effect that plaintiff had filed a suit for possession claiming his superior right of `pre-emption' against the respondents, which was contested and from the pleadings of the parties the learned trial Court framed various issues on 13-4-1999 and the case was fixed for plaintiff/Petitioner's evidence. Parties were directed to file list of witnesses and the documents under Order 16, rule 1, C.P.C.

3. Pre-admission notice was issued to the respondents Nos. 1 to 3 vide order dated 14-7-2003 by this Court, as a response thereto, their learned counsel entered appearance.

4. I have heard the arguments of the learned counsel for the parties at length and record perused.

5. Numerous opportunities were provided to the petitioner for producing his evidence but he failed to do so. He also did not file the list of witnesses neither applied to the Court for permission to summon his witnesses through the process of the Court after framing issues on 13-4-1999. The petitioner had filed an application for permission to present the list of witnesses on 28-5-2003 after a period of three years.

6. The Court is empowered under sub-rule (2) of Order 16, C.P.C. to permit any party to call witnesses or to file list or witnesses provided sufficient good cause for the omission is shown and the Court if grants permission shall record reasons for so doing. The relevant provision of rule is reproduced as under:-- "A party shall not be permitted to call witnesses other than 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." The learned counsel for the petitioner also relied upon the case of Bashir Ahmad v. Fazal Din 1994 CLC 1920 wherein it was observed that `provision of Order 16, rule 1, C.P.C. which permits a party to call with permission of Court witness not included in list of witnesses, has to be liberally construed to enable parties to produce their evidence and to save them from technical knock-out'. He also relied on the case of Muhammad Yousaf v. Muhammad Abbas 1985 CLC 2248.

7. To contradict the arguments of learned counsel for the petitioner, learned counsel for respondents Nos. 1 to 3 has relied upon the case of Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq 1999 SCMR 799 in which it was observed by the Court that `filing of list of witnesses within statutory period of seven days was sine qua non "for the progress of suit in Court

Provisions of Order XVI, R.1 do not fall within the purview of "sheer technicalities". It is strictly in accordance with principle of natural justice that a party should have the knowledge of witnesses of its rival so as to enable to test veracity of those witnesses to prepare for cross -examination in advance.

8. Since the petitioner' himself failed to file list of witnesses or applied to the Court for permission to produce the list of witnesses and slept over his right for about 3 years and remained in state of dormancy, therefore; he is not entitled for production of witnesses at this belated stage.

9. The petitioner has taken exception to the order passed by the lower Court in exercise of its revisional jurisdiction through the instant writ petition against a revisional order. A writ against a revisional order would lie if it is wholly void or coram non judice as laid down in the cases of Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322; Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65 and Rana Mamoon Rasheed v. Kokab Noorani Okarvi and 4 others PLD 1999 Karachi 257.

10. The learned counsel for the petitioner has not been able to make out a case for interference by this Court in exercise of its Constitutional jurisdiction and failed to establish the impugned order as void or coram non judice.

11. For the foregoing reasons, this writ petition having no force is dismissed. S.A.K./F-210/L Petition dismissed.