2008 PLP 1871 (YLR)

NADEEM AZHAR SIDDIQI, J.--This is an application under Order XVI, Rule 1, C.P.C. read with sections 148 and 151, C.P.C. By this application the plaintiff has prayed that he may be allowed to produce witnesses named in the application. In the affidavit it was stated that steps were not taken in time on account of innocent slip and lack of proper advice. It was further stated that since the evidence has not yet commenced no prejudice is likely to be caused to the defendants. The defendant has filed his counter-affidavit and has opposed the application and submits that the matter remained pending before the Commissioner for almost three years and since no progress was made, the Court vide order dated 10-2-2003 ordered that matter be fixed in Court for evidence, and thereafter; the matter was fixed for so many times in Court for evidence, but the plaintiff has failed to lead any evidence. In affidavit-in-rejoinder the plaintiff has submitted that there is no bar to produce witnesses on the date of hearing and that the failure to file list is not fatal and the parties cannot be deprived of their rights on mere technicalities. Mr. Iqbal Kazi, learned counsel for the plaintiff has submitted that filing of list of witnesses before starting of evidence is formal and the purpose is that the other side is aware about the witnesses and he may not be taken by surprise. He further submits that Rule 209 of Sindh Chief Court Rules (Original Side) does not provide any time for filing application for calling witnesses before the Court or for a Commissioner appointed to record evidence. He also refers sections 30(b) of Civil Procedure Code, which provides issuance of summons to persons whose attendance is required either to give evidence or to produce the documents or such other objects as aforesaid and submits that no period is fixed for filing list of witnesses in Court. The learned counsel for the plaintiff has relied upon the following reported cases:-- (1) Mian Muhammad Hafiz v. Aziz Ahmad (1980 SCMR 557) (2) Messrs Naeem Engineering Corporation v. Government of The Punjab (1988 SCMR 1167) (3) Mst. Musarrat Bibi v. Tariq Mahmood Tariq (1999 SCMR 799) Mr. Mansoor-ul-Arfin, learned counsel for the defendants has submitted that according to Order XVI Rule 1, C.P.C. the certificate of readiness to produce evidence along with a list of witnesses has to be filed in Court within seven days after the settlement of issues. He further submits that while framing the issues the Court has not allowed any time to file list of witnesses, and as such, the plaintiff was bound to file list of witnesses within the time prescribed by Order XVI Rule 1, C.P.C. He further submits that Rule 209 of Sindh Chief Court Rules (Original Side) deals with an application for summoning witness, which has to be filed in case the witness is required to be summoned and will apply only after filing of list of witnesses within the time prescribed by law. He further submits that delay can only be condoned on showing sufficient cause, but the affidavit of the plaintiff is silent in this regard and no sufficient cause has been shown. The learned counsel for the defendants has relied upon Mst. Mussarat Bibi v. Tariq Mehmood Tariq (1999 SCMR 799). I have heard the learned counsel for the parties and perused the record. Order XVI, Rule 1, C.P.C. provides that a list of witnesses is to be filed not later than seven days after the settlement of issues. Order XVI Rule 2, C.P.C. provides that a party shall not be permitted to call 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. In this case still no evidence was recorded. The purpose of filing list of witnesses is to obtain summons from the Court for appearance of witness. The Court cannot refuse to record the evidence of witness whose name is not appearing in the list of witness if present in Court. The plaintiff has submitted that due to innocent slip and lack of proper advice 'list could not be submitted. The innocent slip cannot be treated as sufficient cause. In the reported case of Mian Muhammad Hafiz v. Aziz Ahmad (1980 SCMR 557) the Honourable Supreme Court held as under: "The question whether the respondent's delay in filing his application under Order XVI, rule 1 of the Civil Procedure Code was fit to be condoned or not was a question within the discretion of the trial Court and as rightly observed by the Additional District Judge, the trial Court had power to condone the delay and allow the respondents application. Therefore, Mr. Farooq submitted that the trial Court's order was without jurisdiction is neither correct nor reasonable. Undoubtedly the trial Court had the jurisdiction to pass the order which it did. It is true that it acted in breach of the provisions of Order XVI, rule 1 and, therefore, the order passed was an erroneous exercise of its jurisdiction. But, this does not mean that the order is without jurisdiction therefore, the remedy of a writ petition was totally misconceived." In the reported case of M/s. Naeem Engineering Corporation v. Government of the Punjab (1988 SCMR 1167) the Honourable Supreme Court has held as under: "As the record stands, there stands no difficulty in our way in answering the above questions in the negative. Admittedly issues in these appeals were framed on 2-1-1974 and under the law cited above, the appellants were required to submit their lists of witnesses within seven days, i.e. by 9-1-1974, but they did so on 8-3-1974, that is, after more than two months, which obviously was against the provision of sub-rule (1) of rule 1, order XVI, C.P.C. But then the appellants could not be non-suited firstly because this violation was noted for the first time by the Civil Judge after a period of three years and also that no objection whatsoever, had been raised during all this time by the respondents either, and, secondly, because the Court had been acting upon these lists inasmuch as witnesses were summoned on a number of occasions and again not objected to by the respondents. The fault in raising no objection as to the violation of the provision of sub-rule (1) of rule 1 of Order XVI, C.P.C. at the earliest squarely lay on the Court and the respondents. Since a party cannot be penalised because of the omission on the part of the Court, the negligence of the other side and also because nothing has been brought on the record that the other party had been prejudiced, the lists so submitted by the appellants had to be acted upon and evidence recorded accordingly." The facts of the reported cases and the reasons due to which the permission was given is not applicable to this' case. In the reported case of Musarrat Bibi v. Tariq Mahmood Tariq (1999 SCMR 799) the Honourable Supreme Court has held as under: "We are, therefore, clear in our mind that Order XVI, rule 1, C.P.C. requires that within seven days after the framing of issues, the parties should present in the Court the list of the witnesses whom they propose to call either to give evidence or to produce documents. The Court can permit examination of only those witnesses, which are mentioned in the list. Nonetheless permission to call a witness not included in the list can be allowed by the Court provided good cause is shown for the omission. In the instant case, the reasons given by the petitioner for not filing the list within time are the ignorance of law and the two of the three petitioners being females. None of these grounds furnish a sufficient cause for petitioners' omission. It is settled principle that ignorance of law cannot be entertained as a good ground for non-compliance of law. .The petitioners' conduct, as is manifest from the narration of facts given above, smacks of negligence." The Honourable Supreme Court has held that filing of list of witnesses under order XVI Rule 1, C.P.C. do not fall within the purview of "Sheer technicalities". It is a provision strictly in accordance with principles of natural justice. The provision contained in Rule 209 of Sindh Chief Court Rules (O.S.) is an enabling provision subject to furnishing list of witnesses within time allowed by law and is synonymous with the provision of Order XVI Rules (1) (3) of, C.P.C. Since the plaintiff has failed to show any sufficient cause the application is dismissed. However, the plaintiff is at liberty to examine any number of witnesses, who appears in Court voluntarily. H.B.T. /M-46/K Application dismissed.