2018 PLP 13 (YLRN)

MUDASSIR KHALID ABBASI, J.

Through this constitutional petition under Article 199 of the Constitution, petitioner has challenged the legality of order dated 18.03.2014 passed by learned Civil Judge, Sahiwal and judgment dated 30.09.2015 passed by respondent No.1/ learned Additional District Judge, Sahiwal.

2. Brief facts of the case are that petitioner filed a suit for possession through pre-emption before learned Civil Judge, Sahiwal. Respondents Nos.2, 3, 5 and 6 filed their written statements on 03.10.2013 whereas respondent No.4 was proceeded against ex parte. Petitioner filed an application under Order XVI, Rules 1 and 2, C.P.C. for filing the list of witnesses on a ground that due to misunderstanding he could not file list in time. Through impugned order dated 18.03.2014 passed by learned Civil Judge, Sahiwal, said application was dismissed. Feeling aggrieved, petitioner filed a civil revision, which met with the same fate on 30.09.2015.

3. Learned counsel petitioner contends that the impugned order and judgment are against the law and facts of the case. Further contends that non-submission of list of witnesses is not deliberate and is due to misunderstanding. Further argued that technicalities should not be allowed to prejudice the rights of the litigants. Learned counsel for the petitioner has further contended that provision of Order XVI, Rule 1 is directory and not mandatory in nature. He has placed reliance on 2004 SCMR 1367.

4. Conversely, learned counsel for the respondents has supported the impugned order/judgment passed by the courts below. Contends that petitioner has deliberately not filed the list of witnesses within time and the plea taken in the application is contrary to order sheet. Further argued that petitioner has failed to advance any good cause for non-compliance the mandatory provisions of Order XVI, Rule 1, C.P.C. Moreover, there is no jurisdictional defect in the impugned order/judgment.

5. I have given conscious thought to the arguments advanced by the parties and have perused the record.

6. Primary question for determination in this case is that as to whether the petitioner/plaintiff could show any good cause for non-filing of the list of witnesses within seven days, the answer is in negative. Plea taken by the petitioner before the trial court was that on 08.10.2013 when the issues were framed, the clerk of the counsel had only noted down the next date without having knowledge that the written statement has been filed and issues have been framed. Moreover, on the said date the petitioner due to ailment could not make contact with the counsel and subsequently came to know regarding the filing of written statement and framing of issues. Another plea taken by the petitioner is that non-submission of list of witnesses is because of misunderstanding and the petitioner is a patient of blood pressure and due to ailment could not submit the list within time. Moreover, it would be in the interest of justice to allow the petitioner to submit the list of witnesses.

7. Perusal of the order sheet negates the afore-cited pleas taken by the petitioner because on 03.10.2013, when the written statement was filed, on 08.10.2013 when the issues were framed and till 20.11.2013 when application under Order XVI, Rules 1 and 2, C.P.C. was filed, in between, case was adjourned for six times and the presence of the counsel/clerks of the counsels is marked, this nullifies and negates the stance taken by the petitioner, therefore, cannot be treated as a good cause for non-submission of list of witnesses within time.

8. Order XVI, Rule 1, C.P.C. has been elaborately interpreted by the Hon'ble Supreme Court in case titled as "Muhammad Anwar and others v. Mst. Ilyas Begum and others" (PLD 2013 SC 255), wherein it has been held as under:- "Summoning of witness with permission of the court

Scope

Language of O.XVI, Rule 1, C.P.C. stipulated that parties to a lis were required to furnish the list of witnesses, whom they proposed to give evidence or to produce documents, within seven days of the framing of issues

Process and the authority of the court in terms of O.XVI, R.1, C.P.C. to call and summon a witness by a party, had been made subject to, rather conditional to the list of witnesses which a party was mandated to file in terms thereof

Power and machinery of the court for summoning/calling of the witnesses through process/permission of court, as envisaged by O.XVI, C.P.C. could only be invoked if a witness list had been provided and not otherwise." "Presenting list of witnesses in court, requirement of

Object

Object of such a requirement was that no one should be taken by surprise in the course of the trial and the parties, before commencement of trial, must be conscious, aware and fully prepared as to what kind of evidence was expected to be given by the witnesses of the opposite side, so that they could make necessary preparations for cross-examination etc. , and secondly to prevent the concoction and fabrication of the evidence and to make up blatant omissions made by the litigants during the course of the trial- Object of O.XVI, R.1(1), C.P.C. was to bind the parties to such genuine evidence which was available to them at the time of the start of the trial, so that they should not subsequently avail stock and fudge evidence to make up their cases and the deficiencies." "Summoning of witness with permission of the court-Party seeking to summon witness to show "good cause" for failing to submit list of witnesses before court or for omitting to name of such witness in the list

Expression "good cause"--Meaning--No absolute criteria could be set forth as benchmark to test if a case of omission to file the list of witnesses or a name in such list was on account of "good cause", as it depended upon the facts of each case

Party in default had to show a legally sufficient reason, as to why its request should be granted or its inaction/ omission should be excused, in other words, the judicial conscious of the court should be satisfied with justifiable reasons-Party in default could not, as a matter of right or as a matter of course, without assigning or establishing any good cause for the omission, ask for calling/ summoning or even producing 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." "Summoning of witness with permission of the court

Court to grant/refuse such permission after recording reasons

Principles-Court was not free to grant such permission as per its own whim and caprice and in an arbitrary manner, rather it should record reasons for such a permission"

9. Learned counsel for the petitioner has relied on a case law titled as "Umer Hayat v. Addl. District Judge and others" 2004 SCMR 1367 which does not address the questions involved in the present case. It is a leave refusing order laying down that trial court could exercise discretion under Order XVI, Rule 1, C.P.C. subject to showing good cause. What has been discussed above, I am not persuaded to interfere in the impugned order/judgment passed by the Courts below, this petition does not succeed and is dismissed. No order as to cost. MQ/M-118/L Petition dismissed.