2014 PLP 1025 (YLR)

M. SOHAIL IQBAL BHATTI, J.

Through this Civil Revision the petitioners have prayed for setting aside the order dated 12-11-2013 passed by the learned Civil Judge, 1st Class, Rawalpindi.

2. Brief facts giving rise to the filing of the present Civil Revision are that the petitioners filed a suit for recovery of Rs.100,00,000 as damages from the respondent and one Talat Shehzad. The respondent filed a contesting written statement and upon divergent pleadings of the parties, issues were framed on 15-9-2010. The petitioners adduced their oral evidence and after closing of oral evidence filed an application on 5-11-2013 for summoning of two witnesses, namely, Muhammad Akram, S.-I., and Muhammad Asghar, S.-I. The learned trial Court vide order dated 12-11-2013 dismissed the application for summoning of witnesses. The petitioners, at the first instance, assailed the order dated 12-11-2013 by filing a Revision Petition before the learned District Judge, Rawalpindi, which was dismissed as withdrawn vide order dated 19-12-2013 hence the instant Civil Revision before this Court.

3. The learned counsel for the petitioners submitted that the order dated 12-11-2013 of the learned trial Court is against law and has been passed without application of judicial mind. While relying on 2011 YLR 2393, 1988 CLC 2218, 2012 MLD 922 and 2005 MLD 688, learned counsel for the petitioners prayed that this Civil Revision may be accepted.

4. I have considered the arguments advanced by the learned counsel for the petitioners.

5. Order XVI, Rule 1 of C.P.C. provides that list of witnesses is to be submitted within seven days after settlement of issues. It is true that it has been laid down by this Court in numerous judgments that if the witness was present before the Court on the date fixed for evidence, the Court was under legal obligation to record his statement; party to the suit could produce a witness of its own notwith-standing the fact that the name of the said was not mentioned in the list of witnesses filed by the party; but Sub-Rule (2) of Rule 1 of Order XVI, C.P.C. has placed a fetter on summoning of witnesses through the process of the Court if the name of those witnesses was not included in the list of witnesses submitted by the party.

6. In the present case, the application for summoning of witnesses was filed by the petitioners on 5-11-2013 and it had been rightly observed by the learned trial Court that the name of the witnesses was not mentioned in the list of witnesses submitted by the party after framing of issues. The judgments referred by the learned counsel are of no help as in all these judgments it has been settled that bar contained in Order XVI, Rule 1 of C.P.C. would be an absolute bar and would be operative where a party seeks production of witnesses through the process of the Court. Order XVI, Rule 1 of C.P.C. reads as under:-- "Summons to attend to give evidence or produce document.

(1) Not later 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 either to give evidence or to produce documents."

7. The examination of Order XVI of C.P.C. establishes that the party is under an obligation to submit the list of witnesses not later than seven days after the settlement of issues. Sub-Rule (2) of Rule 1 of Order XVI of C.P.C. places a fetter upon the party to call a witness other than those contained in the list of witnesses submitted under Sub-Rule (1) of Rule 1 of Order XVI of C.P.C. except with the permission of the Court and after showing good cause for the omission of including the said witness from the list of witnesses.

8. The judgments relied upon by the learned counsel for the petitioners do not support the case of the petitioners.

9. It is a settled law that a party can get a private witness summoned through the process of the Court if it shows its inability to the Court from producing such witness and it is the duty of the Court to procure the attendance of such private witness by employing coercive measures in the interest of justice but it is not the case of the petitioners; in fact, the petitioner sought the indulgence of the learned trial Court for summoning of the witness whose name has not been included in the list of witnesses submitted by the petitioners in terms of Order XVI, Rule 1, of C.P.C. The learned trial Court has not committed any illegality while passing the impugned order.

10. For what has been discussed above, this Revision Petition having no merits is dismissed in limine. AG/K-9/L Revision dismisse