1989 PLP 4119 (MLD)

Date of hearing: 15th April, 1989. This Civil Revision calls in question an order dated the 11th of June, 1985, of the learned Civil Judge Ist Class, Gujranwala, whereby he allowed the respondents‑plaintiffs to take opinion of a handwriting expert and to call him as an unlisted witness.

2. The reason advanced in their application dated the 6th of November, 1984, was that in order to prove execution of the disputed sale‑deed, it was in the interest of justice to take specimens of the petitioner's signatures and get them examined by a Government handwriting expert, or else they would be suffering irreparable loss.

3. The petitioner opposed the application seriously. He submitted firstly that the respondents did not give any list of witnesses at all till today much less within the period of seven days after framing issues; secondly that they never indicated the name of the handwriting expert among the witnesses to be called by them; thirdly that without mentioning him in such a list, they were not entitled to call him; fourthly that they availed many adjournments over a long period without completing their evidence; and lastly that the next date of hearing having been given to them as last opportunity to conclude evidence at their own responsibility, they were not entitled to any further adjournment on any ground whatsoever.

4. The trial Court allowed the application expressing that it had discretion under Order XVI, rule 1(2), C.P.C. to permit a party to produce evidence not mentioned in the list and further that it would be in the interest of justice to get the document examined by the expert in order to ascertain the hidden reality. Aggrieved by the order, the petitioner‑defendant has preferred the present revision petition.

5. Order 'XVI, rule 1(2), C.P.C., does not permit a party to call witnesses other than those contained m the list of witnesses to be filed within seven days of the settlement of issues. The plain meaning of this governing rule is that an unlisted witness could not at all be allowed to be called. However, the sub‑rule itself provides an exception whereby a party may call a witness with the permission of the Court and that too after showing good cause for the omission of his name from the list. Still further, the Court has to record reasons while granting such permission. Counsel drew attention to the respondents' application and also the impugned order which, according to his reading, did not contain anything whatsoever to explain why the name of the expert witness was omitted from the list. He placed reliance upon Messrs Spencer & Co. (Pak.) Ltd. v. Messrs National Agencies Ltd. Rawalpindi etc. PLJ 1984 Lah. 494 where it was held that as a matter of obligation some reason had to be shown by the Court for allowing to call an unlisted witness. Similarly he sought support from J.H Abraham v. Aziz Aslam 1986 SCMR 1382. It was a decision basically laying down that an order to examine unlisted witnesses was purely discretionary, yet it made an indication that in order to afford protection to it on the ground of discretion, it should not suffer from any infirmity, legal or otherwise. Counsel was emphatic in urging that failure to state in the petition why the witness was not included in the list and a like default in the impugned order would make it violative of the express words of sub‑rule (2), and, therefore, it shall be suffering from a vital legal infirmity. In the alternative he relied upon Ghulam Murtaza v. Muhammad Ilyas etc. PLD 1980 Lah. 495(FB) for the view that at best the witness could have been called by the party himself and not summoned by the Court. The reason, according to him, was that the Court had no discretion whatsoever to summon him formally by issuing a process. The ratio of the said case on his interpretation perms the Court to call only those witness who might be made available by the party concerned on his own.

6. On the other hand, counsel canvassed that an unlisted witness could be refused to be summoned only if his production was to cause prejudice to the opposite party or inconvenience to the Court. The Australasia Bank Ltd, v. Messrs Mangora Textile Industries, Swat etc. 1981 SCMR 150 and Mannu Khan v. Atta Muhammad etc. NLR 1979 Civil Lah. 515 were quoted to support proposition. The impugned order was said to have been passed while still respondents' evidence was being examined and the petitioner‑defendant had to start production of evidence in rebuttal. It was claimed that there would be no prejudice to the petitioner as he could produce any evidence in rebuttal. Likewise, it was observed that there would be no inconvenience to the Court either, as the case had not been closed and there was no fear of re‑opening it after completion of the treat. Additionally, reference to the handwriting expert was said to be not a case decided so as to sustain Revision. Umar Dad Khan etc. v. Tila Muhammad Khan and others PLD 1970 SC 288 and Mst. Zareen Akhtar Khan v. Dr. Muhammad Ashfaq Rana and others PLD 1982 Lah. 241 were referred to bear out this plea. Last but not the least the contention was that the order was discretionary in terms of the ratio of the case reported in Feroze Din v. Abdul Hamid etc. PLD 1969 Lah. 89 and could not be interfered with.

7. The Australasia Bank Ltd.'s case was distinguished on the ground that a plausible reason was given in the application while seeking permission to call an unlisted witness and, in fact, the explanation whatever found favour with the trial Court. In the case in hand the application totally missed to state as to why the name of the witness was omitted from the list. Exactly in the same way the impugned order also failed to recount any reason for the said omission. The tenor of the sub‑rule (2)`obviously was to take away jurisdiction from the Court to allow C unlisted witnesses in the absence of any such plausible reason. What the Court wrote in the order was that it would meet the ends of justice. Evidently this was not something to explain as to why the name of the witness was omitted from the list. In other words meeting the ends of justice was not synonymous with the reason of dropping the name of the witnesses from the list. It was an illegality for which even the J.H. Abraham's case created an exception. As to whether reference to the expert constituted a case decided or not the Umar Dad Khan etc case was also said to be distinguishable on the plane that it was enunciated much earlier than rule 1 of Order XVI was substituted by the Law Reforms Ordinance. 1972 The new provision was more tight, in that it did not permit the Court to allow a party to call a witness not borne on the list. This was the plenary position but in the case of an exception created by sub‑rule (2), a reason had to be established to explain away the omission of the name of the witness from the list. Even the discretion of the Court was controlled as the order had to be supported by such reason. Consequently, the Umar Dad Khan etcs case was as well not helpful to the respondents. The contention that in the absence of prejudice to the opposite party and inconvenience to the Court, a witness could be called, is not visualized by the express provision of sub‑rule (2). Although The Australasia Bank Ltd.s' case conceived of this principle, yet the later case of J.H. Abraham made it a point to see that the order did not suffer from legal infirmity. The corollary would be that where a legal infirmity could be established, absence of prejudice to the opposite party or inconvenience to the Court will have no place.

8. As a result of the above discussion, the impugned order is not sustainable. The revision petition is accepted, the order in question is set aside. The relevant application of the respondents is dismissed. H.B.T./S‑431/L Revision accepted.