1980 PLP 1815 (CLC)

Plaintiff -applicant has filed Civil Suit No. 1446 of 1978 against respondent defendant, in civil Court, Karachi, for injunction to restrain the respondent from blocking the entrance to the passage in between the plots owned by them in Sher Shah Kabari Market, Karachi. Defendant-respondent filed written statement on 18th November, 1978, and the issues were settled on 23rd March, 1979. Parties were required to submit list of witnesses within seven days. Plaintiff presented the list of witnesses in time, while the defendant did fot. Plaintiff closed his evidence on 20th January, 1980. Case was adjourned to 27th January, 1980, when defendant-respondent was examined. After his examination the defendant made an application that he would produce three witnesses. This was opposed by the plaintiff applicant. The Court passed the following order; "The application is opposed but in the interest of justice, the defendant is allowed to lead evidence." Against this order present Revision Application is filed.

2. Order XVI, rule 1 of the Code of Civil Procedure, 1908, as amended by the Law Reforms Ordinance XII of 1972, which deals with summoning of the witnesses to give evidence or produce documents, provides that within seven days after settlement of issues, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or produce documents. Under rule 2, a party is not permitted to call 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. It follows that under rule 2, the Court has got discretion to grant permission to a party to summon witnesses, where the party had presented a list of witnesses from which the witnesses proposed to be called, were omitted. If the party had not presented the list of witnesses within seven days after the settlement of issues, as required by rule 1, the Court has no discretion to permit a party to call it witness. In this case, defendant did not present list of witnesses within seven days after the settlement of issues. After the close of his evidence, the defendant made a statement that he would produce the witnesses named therein. The defendant did not show cause whatsoever, for not presenting the list of witnesses after the settlement of issues. The trial Court, therefore, had no discretion to permit the defendant respondent to lead the evidence of witnesses stated by him at a belated stage. The trial Court, therefore, acted in exercise of his jurisdiction illegally by permitting respondent-defendant to examine his witnesses not named by hurt within seven days of settlement of the issues.

3. The term `case decided' occurring in section 115 of the Code of Civil Procedure, 1908, in the broadest and most ordinary sense include a part of the case, or an issue or an interlocutory order. It does not necessarily refer to an order which determines the whole case or all matters in dispute, as in the case of a decree, but to any state of facts judicially considered which will ultimately affect the rights of the parties, even though the order may be passed in the course of trial of the suit and includes a step in aid of determina tion of the controversy. The impugned order in this case, having been passed judicially which affects rights of the parties, the revision application under section 115 of the Code of Civil Procedure against such order, was competent.

4. In the circumstances, Revision Application is allowed order of the trial Court dated 27-1-1980 permitting defendant to examine his witnesses, is set aside. M.Y,.M Revision application allowed.