2014 PLP 1478 (CLC)

MUHAMMAD DAUD KHAN, J.

Impugned herein is the judgment and order dated 7-2-2014 rendered by learned District Judge, Bannu, whereby the revision petition filed by the respondent/defendant against the order dated 26-9-2013 handed down by learned Civil Judge-XI, Bannu was accepted and resultantly the application of the petitioner/plaintiff for permission to include the witnesses and summoning thereof, was dismissed.

2. The facts in brief leading to filing of instant petition are that petitioner has filed a pre-emption suit qua sale Mutation No.1103 attested on 25-10-2011 against the respondent/defendant. The averments of the petitioner/plaintiff made in Para-III, of the plaint are that:

When put on notice, the respondent/defendant contested the suit by submitting written statement. On divergent pleading of the parties, issues were framed. Parties were directed to submit their respective list of witnesses. Petitioner/plaintiff on 4-5-2012 submitted his list of witnesses consist of Patwari Halqa, Umar Shah son of Aqleem Khan, Muhammad Raza Khan son of Ghulam Hassan and himself, whom he proposed to call, to record evidence and to produce documents. During the course of recording evidence, on 18-5-2012 the petitioner/plaintiff moved an application for summoning of Registry Moharrir Post Office concerned through the process of Court, being necessary to prove factum of notice Talb-e-Ishhad. Subsequent to that application another application was moved by the petitioner/plaintiff for the permission to record statement of scribe of the alleged notice Talb-e-Ishhad, the NOK, Kalimullah son of Rahmanullah and Dil Nawaz Khan son of Khalilur Rehman of Mndan District Bannu. Both the applications were resisted by the respondent/defendant but the learned Civil Judge-XI, accepted both the applications of the petitioner/plaintiff vide order dated 26-9-2013 and he was directed to deposit diyat money and summoned the witnesses accordingly. The respondent/defendant challenged the aforesaid order through revision petition which was accepted vide judgment and order dated 7-2-2014 by learned District Judge, Bannu, hence this writ petition.

3. Mr. Abdur Rashid Khan Marwat Advocate, learned counsel for the petitioner/plaintiff contended that the witnesses sought to be summoned by the petitioner are material and necessary for the just decision of case on merits. He further submitted that provision of Order XVI, Rule 1, C.P.C, allowing a party to call witnesses, not included in the list of witnesses, must be construed liberally to enable the parties to produce their evidence and save them from technical knock-out. He further contended that for the purpose of dispensation of justice, technicalities should not be allowed to impede and prejudice the rights of the parties. He lastly argued that the trial court had allowed the application for summoning of witnesses of the petitioner/ plaintiff for valid reasons, therefore, such order should not have been interfered with by the District Judge in exercise of its revisional jurisdiction. The learned counsel for the petitioner/plaintiff relied on the case-laws, 1981 SCMR

150. PLD 1992 SC 811. 2004 SCMR 1367; 2005 CLC 325 and 2011 CLC 569.

4. Conversely, learned counsel for the respondent/defendant opposed the arguments of learned counsel for the petitioner/plaintiff and supported the impugned order.

5. We have heard arguments of learned counsel for the parties and gone through the record appended with the petition.

6. Admittedly the names of witnesses in both the applications sought to be summoned were not there in the list of witnesses filed by the petitioner/plaintiff in terms of Order XVI, Rule 1, C.P.C. The list of witnesses of plaintiff was submitted through counsel and he might know the required witnesses for evidence and production of documents, to prove its case required by pre-emption law. Be that as it may, in order to resolve the proposition, it is necessary to reproduce the relevant law i.e. Order XVI, Rule 1, C.P.C., which reads as below:

"

1. Summons to attend to give evidence or produce document.

(1) Not latter 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 or produce either to give evidence or to produce documents. (2) A party shall not be permitted to call or produce witnesses other than those 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. (3) ." Perusal of the above provision of law stipulates the parties to furnish lists of witnesses, whom they propose to call either to give evidence or to produce the document, within seven days of framing of issues, that the process and the authority of court to call and summon the witnesses by a party has been subject to, rather conditional to the list of witnesses which a party is mandate to file in terms thereof. The power and the machinery of the court and law, as is envisaged by certain subsequent relevant rules of Order XVI, C.P.C. can only be revoked, if such a list has been provided and not otherwise. From Sub-Rule 2 of the aforesaid Order XVII, the intention of legislation is fortified, as specific prohibition has been placed preventing the party to call the witnesses. 7 Undoubtedly this is a mandatory provision of law, as it entails serious consequences of precluding a party from calling through aid of court. Though a room has been provided to a delinquent party to make up its default and delinquency and ask for the indulgence of the court to summon and produce the witnesses after showing 'good cause' for omission of the said witness from the list.

8. The Order XVI, Sub-Rule (2) can validly be bifurcated into two parts, firstly, it has been made incumbent upon a party, rather a duty has been cost upon the delinquent party to show "good cause" for omission to file the list of witnesses or the name of a particular witness and the second part is meant to regulate the power, authority and discretion of the Court. For the purpose of comprehending the first part, it is necessary to ascertain the expression of "good cause" mentioned in the said Rule. The honourable Supreme Court of Pakistan in case titled "Muhammad Anwar and others v. Mst. Iliyas Begum and others" (PLD 2013 SC 255) ascertained the true meaning and expression of "good cause" explaining in the following words:

"For the purpose of comprehending the first part, it shall be relevant to ascertain the true meaning of the expression 'good cause' which according to Black's Law Dictionary Eighth Edition means "A legally sufficient reason. Good Cause is often the burden placed on a litigant (usu. By court rule or order) to show why a request should be granted or an action excused

Also termed good cause shown; just cause; lawful cause; sufficient cause". Whereas, according to the said dictionary "sufficient cause" bears the same meaning as "good cause" and thus both the words can be held to be considerably analogue and interchangeable expressions, yet as per the precedent law, 'good cause' has been construed in wider terms than 'sufficient cause'. Though no hard and fast, and absolute criteria can be set forth, as benchmark, to test, if a cause of omission to file the list of witnesses or a name in such list is on account of `good cause', as it depends upon the facts of each case, however, the party in default has to show a legally sufficient reason, why a request should be granted or the inaction/omission should be executed, in other words, the Judicial conscious of the Court should be satisfied with justifiable reasons. In any cause, a party in default cannot, as a matter of right or as a matter of course without assigning or establishing any good cause for the omission, ask for the calling/summoning or even to produce the witness(es) only on account of a lame excuse/reason and a bald assertion that, it shall be in the interest of justice and/or it shall facilitate the Court in deciding the matter."

9. In the instant case application for summoning witnesses through process of court is without mentioning any cogent reason and absolutely lack of "good cause" specially when the petitioner/plaintiff is pre-emptor and legally bound to prove factum of performance of Talb-e-Muwathibat and Talb-e-Ishhad in prescribed manner according to law within the time limit. Perusal of list of witnesses of the petitioner/ plaintiff reveals that it was submitted through learned counsel for the petitioner/plaintiff and certainly he was conscious at the time of such submission of list that Clerk Post Office, Postman and Scribe of the Notice Talb-e-Ishhad were necessary to prove the factum or performance of talbs.

10. Since the pre-emption suit, under well-settled precedential law is more like criminal case, no omission, howsoever fatal it may be, can be allowed to be supplied by means of amendment, addition, strike off, make up its default and delinquency. In case it is done by means of above, it would open room for additions, afterthought improvements, wisdom can be taken from the judgment of august Supreme Court of Pakistan in the case "Ghulam Yasin and others v. Ajab Gul" 2013 SCMR 23(c) observed as under:

"Quite apart from this since a pre-emption case under the latest dispensation is more like a criminal case and a plaint in the former is almost like an F.I.R. in the latter, no omission however, fatal it may be, can be allowed to be supplied by means of amendment. In case it is done by means of amendment, it would open room for additions, afterthoughts and improvements which would go adjourned infinitum. Neither the pre-emption nor the criminal case with this modus operandi would admit of an end in the mundane existence of the parties."

11. The learned counsel for petitioner/plaintiff has relied upon; 1981 SCMR 150, it was suit of recovery of a loan and the Bank had been nationalized and officers of the bank who were aware of the facts of case, could not easily traced due to transfer from place to place and had retired and one of them died; PLD 1992 SC 81, It was a case of additional evidence in the case of inheritance under Order XLI, Rule 27 C.P.C. 2004 SCMR 1367 in this case the Hon'ble Supreme Court held that permission any granted if "good cause" for omission of the witness from the list is shown and 2012 CLC 569, in this case the witnesses were mentioned in the list of witnesses at serial Nos.6, 10 and 13, hence, the facts of all the case-laws referred by learned counsel for the petitioner are altogether different and has no nexus with the facts and circumstances of the instant case.

12. The other contention of learned counsel for the petitioner/ plaintiff that for the purpose of dispensation of justice technicalities should not be allowed to impede the rights of parties. We are afraid and not agree with the view of learned counsel for petitioner, as above principle of law cannot be used as an instrument to avoid, shun or defeat the specific provision of law and save the party from consequences of its delinquency against the clear command of law.

13. In light of above, we do not find any error in the impugned judgment and order of revisional court of District Judge Bannu calling for interference in the constitutional jurisdiction of this Court. The petition, therefore, has no merit which is hereby dismissed. AG/235/P Petition dismissed.