2013 PLP 1553 (YLR)

MEHMOOD MAQBOOL BAJWA, J.

Calls in question the vires of order dated 19-5-2010 recorded by learned trial Court whereby the application made by the petitioner for permission to submit list of witnesses was declined.

2. Necessary facts resulting in filing of revision petition are that present petitioner instituted suit for specific performance of executory contract of sale dated 21-6-2005 maintaining that the respondents Nos.1 to 6 agreed to transfer the property subject-matter of the suit in favour of the petitioner for a consideration of Rs.2,16,36,000 and received earnest money. Alleged failure of the said respondents to perform their part of contract resulted in institution of suit for specific performance which was contested by the respondents legally as well as on facts. After casting issues lis was posted for evidence of present petitioner. Admittedly, the list under Order XVI of the Code of Civil Procedure, 1908 was not submitted and as such application was made by the petitioner for permission but the same after-calling written reply was declined vide order impugned.

3. Heard. Learned counsel for the petitioner maintained that available rights of the petitioner are involved in the lis and petitioner was unaware of the provision of law and as such could not submit list of witnesses. Submitted that since law favours adjudication on merits, therefore, learned trial Court should have exercised discretion in his favour. On the other hand, learned counsel for the respondents maintained that the petitioner failed to point out any good cause to submit the list of witnesses and as such was rightly non-suited by the learned trial Court. Submitted that the revision petition is also barred by time.

4. Perusal of record suggests that question of limitation arose due to the fact that revision petition was put up before the Court on 8-9-2010 though in fact same was filed on 7-9-2010 as is evident from the face sheet and as such objection regarding limitation cannot be validly pleaded.

5. It is not disputed that the petitioner being plaintiff was obliged to submit list of witnesses not later then seven days after settlement of issues which admittedly could not be submitted at the instance of petitioner maintaining that omission was due to inadvertence. A party can be permitted to call any witness whose name does not find mention in the list after showing good cause for the omission.

6. It is well-settled that law favours adjudication on merits. The purpose and object of legal formalities and procedural provision is to safeguard the interest of justice and procedural provision normally should not be allowed to defeat the ends of justice as held in "ANWAR KHAN v. FAZAL KHAN" (2010 SCAIR 973). Admittedly the valuable rights of the petitioner are involved in the matter and as such the omission to comply procedural provision by itself shall not have been taken so strictly by the learned trial Court. Learned counsel for the respondents contended that since the petitioner has assailed the vires of said order in revisional jurisdiction, therefore, no such relief can be granted while exercising such jurisdiction. No doubt the revisional Court normally will not interfere with decision of subordinate Courts regarding the matter, which are within discretion of the Court, but nevertheless an improper and wrong exercise of discretion is open to revision as held in M. AKBAR MUGGO v. CHIEF CORPORATION" (1995 CLC 1939). The Hon'ble Supreme Court of Pakistan dealt with the moot point in MUHAMMAD NAWAZ and others v. MUHAMMAD SADIQ and another (1995 SCMR 105) and has held at page 118 which is as follows:-- "In this regard, it may be mentioned that it is a well-settled proposition of law that a revisional Court cannot interfere with the exercise of discretion by a competent Court unless such exercise of discretion is arbitrary, fanciful and whimsical, and can be brought within the ambit of section 115, C.P.C. which confers revisional jurisdiction on the High Court in the matters in which a subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity." Civil Court is not only the Court of law but also the Court of equity required to dispose of the cases on merits and not on technicalities, therefore, learned trial Court should have shown indulgence in favour of present petitioner but failed to exercise discretion properly and as such the dismissal of the application vide order impugned is result of improper exercise of discretion, subject to revisional jurisdiction of this Court.

7. Pursuant to above discussion, while setting aside the order impugned but subject to payment of Rs.5000 as costs the revision petition is accepted allowing the application of the petitioner. AG/M-53/L Petition accepted.