2022 PLP 856 (CLC)

MUZAMIL AKHTAR SHABIR, J.

Through this Civil Revision, the petitioner has called in question order dated 07.11.2020 passed by Addl. District Judge, Pakpattan, whereby in a suit for recovery of money, an application filed by the respondent/plaintiff to amend the list of witnesses by including the names of Muhammad Munawar son of Khadim Hussain and Muhammad Aslam s/o Ghulam Mohe-ud-Din, has been allowed.

2. It is contended by the learned counsel for the petitioner that list of witnesses was required to be filed within limitation, which the respondent failed to do by mentioning the names of the afore-referred witnesses within time, therefore, in terms of the judgments reported as PLD 2020 Lahore 675 (Muhammad Sana Ullah v. Additional District Judge and others), 2020 MLD 1760 (Muhammad Iqbal v. District Judge, Vehari and others) and PLD 2013 Supreme Court 255 (Muhammad Anwar and others v. Mst. Ilyas Begum and others), the Addl. District Judge, Pakpattan, could not allow the respondent to include the names of the afore-referred witnesses in the list of the witnesses.

3. On the other hand, learned counsel for the respondent has defended the impugned order while also relying upon principles laid down in judgment reported as PLD 2013 Supreme Court 255 (Muhammad Anwar and others versus Mst. Ilyas Begum and others).

4. Heard. Record perused.

5. It is observed that the respondent filed suit for recovery of Rs.5,50,000/- in the court of Addl. District Judge, Pakpattan, wherein he has mentioned in paragraph No. 2 of the plaint that he had given Rs.5,50,000/- to the petitioner/defendant in presence of witnesses namely Muhammad Munawar son of Khadim Hussain and Muhammad Aslam s/o Ghulam Mohe-ud-Din against issuance of cheques for the said amount, which was dishonoured on its presentation. However, the names of the said witnesses were not mentioned in the list of witnesses and subsequently the respondent filed an application for inclusion their names in the said list, which was contested by the counsel for the petitioner and through the impugned order, the court allowed the said application with the observation that they can appear in the court as witnesses. The operative portion of order is reproduced below: "

4. Perusal of record shows that originally the plaintiff filed a suit for recovery on the basis of negotiable instruments whereupon show-cause-notice was issued to the defendant and application for leave to contest was allowed and issues were framed on 21.06.2019 and list of witnesses by both the parties was submitted before the court within stipulated period. Thereafter, on 13.12.2019 the plaintiff filed an application for amendment the name of both these witnesses and names of both witnesses had already mentioned in the plaint in para No.2 and both these witnesses have also been appearing before the court for the purpose of evidence. It is settled principle of law that where name of the witness is not mentioned in the list of witnesses he cannot be summoned for the purpose of evidence before the court and without reasonable cause name of the witness cannot be allowed to be added in the list of witnesses but the facts of present case are distinguishable from the settled rules and from the cases as cited by the counsel for the defendant as names of both the witnesses have already been mentioned in the plaint, therefore, it was not mandatory upon the plaintiff to mention their names in the list of witnesses. They can appear in the court as witnesses before the court. Hence, application in hand is accepted and the plaintiff is allowed to amend in the list of witnesses as prayed for." The counsel for the petitioner contends that the respondent was required to show good cause for not mentioning the names of the afore-referred witnesses in the list of witnesses and having failed to do so, the court was not justified to allow the said persons to appear as witnesses. It is not an absolute rule of law that once a party omits to file list of witnesses or to mention the name of a witness in the said list, it would thereafter be precluded from seeking permission of the court to produce that witness in the said case and the court has to make the decision to allow or refuse permission to produce such witnesses in evidence on case to case basis by keeping in view the facts of the case and circumstances in which the said list was not filed, which inter alia are relevant factors for determining whether a party had made out a good cause for allowing or refusing to him grant of permission to produce such witnesses. The actual purpose of mentioning the names of witnesses in the list of witnesses is that the other party is not taken by surprise or evidence may not be fabricated later on and a party should know what evidence shall be given by the other side, for which purpose reliance may be placed on judgment reported as PLD 2013 Supreme Court 255 (Muhammad Anwar and others v. Mst. Ilyas Begum and others), wherein although the permission to make addition to list of witnesses was declined as the said request was made after various adjournments were sought for production of evidence and that too without showing any good cause, however, it was held as under:- "

6. The obvious query therefore should be as to why the legislature from time to time has been introducing the changes in the said rule, the answer is quite straightforward: firstly, that no one should be taken by surprise in the course of the trial of the suit and the parties, before the commencement of the trial, must be conscious, aware and should be fully prepared, as to what kind of evidence is expected to be given by the witness(es) of the opposite side, so that they can make necessary preparations for the cross-examination etc. and secondly; to prevent the concoction and fabrication of the evidence and to make up blatant omission(s) by the litigants during the course of the trial, meaning thereby to bind the parties, to such genuine evidence which was/is available to them at the time of the start of the trial, so that they should not subsequently avail stock and fudged witness(es) to make up, their case(s) and the deficiencies. Thus, the interpretation of the noted provisions of law is required to be made in the context of its object as stated above." It was further observed as under:- "

8. For the purpose of comprehending the first part, it shall be relevant to ascertain the true meaning of the expression 'good cause' which according to Black's Law Dictionary Eighth Edition means "A legally sufficient reason. Good cause is often the burden placed on a litigant (usu. By court rule or order) to show why a request should be granted or an action excused.-- Also termed good cause shown; just cause; lawful cause; sufficient cause'. Whereas, according to the said dictionary "sufficient cause" bears the same meaning as "good cause" and thus both the words can be held to be considerably analogue and interchangeable expressions, yet as per the precedent law, good cause has been construed in wider terms than 'sufficient cause'. Though no hard and fast, and absolute criteria can be set forth, as benchmark, to test, if a case of omission to file the list of witnesses or a name in such list is on account of 'good cause', as it depends upon the facts of each case, however, the party in default has to show a legally sufficient reason, why a request should be granted or the inaction/omission should be excused, in other words, the Judicial conscious of the Court should be satisfied with justifiable reasons. In any case, a party in default cannot as a matter of right or as a matter of course without assigning or establishing any good cause for the omission, ask for the calling/summoning or even to produce the 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." (emphasis supplied) The perusal of the principles laid down in the afore-referred judgments shows that main purpose of providing names of witnesses through list of witnesses to be filed under Order XVI of the C.P.C is to enable the other party to know what evidence shall be produced so that it may not be taken by surprise and evidence may not be fabricated later on. However, on 'good cause' being shown the court in its discretion if its judicial conscious is satisfied with justifiable reasons may allow permission to the party to produce its witness(es), whose names were not mentioned in the list of witnesses. Although the principles of law laid down in the said judgment are relevant, refusal to grant permission to produce evidence by including new names in the list of witnesses was made by the court in that case on the ground that the application had been made after obtaining various adjournments and had been allowed by the appellate court merely by citing the reason that no one should be knocked out on technical ground, which order was not found by the High Court and the Hon'ble Supreme Court of Pakistan as good ground for allowing permission to amend list of witnesses and adduce evidence, hence, permission was refused on distinguishable facts and not applicable to the facts of the present case, which are discussed below. In the present case as the names of afore-said witnesses find mention in the plaint, therefore, it cannot be said that the petitioner/defendant would be taken by surprise or there is chance of fabrication of new evidence by belated inclusion of the names of the said witnesses in the afore-referred list and permitting the respondent to produce them in evidence. Mentioning of names of the witnesses in the plaint with their role at the very inception of the matter before the court, which is even prior in time to framing of issues and time of seven days provided under Order XVI, Rule 1, C.P.C for filing list of witnesses in the court, would be a 'good cause' and sufficient reason to allow the respondent to produce them in evidence even if their names were not earlier included in list of witnesses. The judgments reported as PLD 2020 Lahore 675 (Muhammad Sana Ullah v. Additional District Judge and others), 2020 MLD 1760 (Muhammad Iqbal v. District Judge, Vehari and others) referred by the learned counsel for the petitioner are distinguishable on the basis of facts as the afore-referred cases do not relate to suits in which the names of the witnesses had been mentioned in the plaint. Moreover, no prejudice would be caused to the petitioner if the said witnesses are produced in evidence and he shall have a right to cross-examine said witnesses in order to dig out the truth. Moreover, the purpose of procedure is to advance the cause of justice and not to hamper it and the productions of said witnesses may facilitate the court to reach just decision in the matter. On the basis of afore-referred reasons, the judicial conscious of this Court is satisfied that the Addl. District Judge, Pakpattan, for justifiable reasons has rightly allowed the permission to the respondent to produce witnesses in evidence, whose names have been mentioned in the plaint.

6. Consequently, this Court holds that there is no illegality or jurisdictional defect in the impugned order passed by the learned Addl. District Judge, Pakpattan, which is based on proper appreciation of facts and record of the case, law on the subject, well founded and does not warrant any interference by this Court and is upheld, with the result that this Civil Revision being devoid of any merits is dismissed. ZH/M-5/L Revision dismissed.