2013 PLP 323 (MLD)

SYED MUHAMMAD FAROOQ SHAH, J.

Captioned Civil Revision Application filed under section 115, C.P.C. is arising from the impugned order dated 19-5-2012 whereby application filed under Order XVI, Rules 1 and 2, C.P.C. read with section 151, C.P.C. was allowed and the impugned order further reveals that learned Trial Court observed that the Trial Court has the power to call persons other than the persons mentioned in the suit in order to reach at the real conclusion to decide the matter in between the parties. Mr. Dildar Ali, learned counsel representing the petitioner contended that earlier the plaintiffs availed sufficient opportunities and that earlier application filed under Order XVI Rule 1 was allowed by consent but the impugned order passed on second application filed under Order XVI, Rule 1, C.P.C. is not tenable in law on the ground that provisions of Rule 2 of Order XVI, C.P.C. are ancillary to the provision of rule 1 which requires that within 7 days after framing of issues, the parties should present in court the list of witnesses to whom they proposed to call either to give evidence or to produce documents. The court may call and examine only those witnesses which are mentioned in the list and permission to call witnesses not included in the list can be allowed by the court provided sufficient cause is shown for omission. In the instant case in supporting affidavit of the application under Order XVI, Rules 1 and 2, C.P.C. the plaintiff No.3 has submitted that on 24-12-2012 the witness appeared before the court to produce the documents/requested that he had not brought entire record as same is not mentioned in the application and further stated that if the plaintiff provide list of documents which he required to produce, he will bring the same and to produce before the court. In this view of the matter, the concerned is required to produce the documents which according to learned counsel for respondents are necessary for just decision of the case. On the other side, in counter affidavit to the application under Order XVI Rules 1 and 2, C.P.C. attorney of the defendant No.1 stated that the proposed documents/record has nothing to do with the cause of action pleaded by the plaintiff in suit and the same is deviation from the original plaint. It is further stated that the application has been made with mala fide intention to prolong the matter and cause harassment to defendant No.1 as the proposed documents are not required for proper adjudication of this case as the same are not necessary for determination of any of the issues claimed in this case. I have heard learned counsel for the parties at some length and perused the material available on record. Mr. Saeeduddin Siddiqi representing the respondents submitted that it is settled law that the procedural technicalities which tend to create hurdle in the way of justice should not be allowed. Reliance in this respect is placed on the case of Syed Sharif ul Hassan v. Hafiz Muhammad Amin (2012 SCMR 1258). It is next contended that the revisional jurisdiction of the High Court is narrower and in this regard reliance has been placed on the case of Noor Muhammad v. Mst. Azmat-e-Bibi (2012 SCMR 1373). To resolve the moot of contention affecting rights of the parties and interest and to establish affirmatively the nature of transaction the evidence in such regard must be impeachable. If at all, the transaction affecting the rights of parties may be resolved from production of mentioned documents through a witness. The learned trial Court is set at liberty to summon those documents if found available and necessary for just decision of the suit and conclude the trial preferably within a short period of three months. The civil revision application stands disposed of. KMZ/B-16/K Petition allowed.