P L D 1980 Lahore 435 (PLP)

In this writ petition the grievance of the petitioner is that the learned Civil Judge has accepted the application of the respondent for presenting the list of witnesses two years after the framing of issues in violation of the provisions of rule 1 of Order XVI, C. P. C. and the revision preferred by the petitioner against that order was dismissed by the learned Additional District Judge, Gujranwala illegally.

2. The facts of the case briefly are that the petitioner is a defendant in a suit for declaration filed by respondent No. 3, who is the plaintiff in the suit. On the pleadings of the parties issues were framed on 21-2-1977 and the case was adjourned for evidence to 26-6-1977. Respondent No. 3 presented the list of witnesses proposed to be called on 31-3-1977. About two years later on 12-9-1979 before the evidence of the parties was recorded respondent No. 3 made another application for condonation of delay in presenting the list of witnesses proposed to be called. This application was allowed by the learned trial Court on the ground that it was expedient in the interest of justice to allow the respondent to present his case and produce evidence accordingly. In the application it was stated that on account of bona fide omission respondent No. 3 could not present the list of witnesses proposed to be called within time provided by sub-rule (1) of rule 1 of Order XVI, C. P. C. But there was no motive in not filing the list in time. Even the petitioner had not proved any mala fide in filing the list after the period provided by sub-rule (1) of rule

1. While condoning the delay in filing the list of witnesses proposed to be called costs of Rs. 30 was awarded to the petitioner. The case was adjourned for evidence of the respondent to 21-1-1980.

2. The petitioner dissatisfied with the order of the trial Court filed a revision before the District Judge which was heard and dismissed by the learned Additional District Judge, Gujranwala vide order dated 4-12-1979. The learned Additional District Judge was of the view that the trial Court had considered the grounds of application as sufficient to condone the delay in presenting the list of witnesses proposed to be called. No illegality had been committed by the trial Court in passing the order. The petitioner still not satisfied filed this writ petition and called into question the jurisdiction of the trial Court to accept any list of witnesses after the period provided by subrule (1) of rule 1 of Order XVI, C. P. C. He further submitted that there was no sufficient cause to condone :he delay in presenting the list of witnesses by respondent No.

3. His main argument is that sub-rule (1) is mandatory and if it is not complied with, list of witnesses cannot be allowed to be presented in any circumstance. Under sub-rule (2) permission can be granted by the Court in respect of those witnesses not mentioned in the list and from that he suggested that requirement of list is must and if that is not filed, no permission can be granted even under sub-rule (2) to present the same. In this connection he has referred to Messrs Crescent Films, Lahore v. Messrs Shah Noor Films Ltd. Lahore and 8 others (1). But this is a case under sub-rule (2) and not under sub-rule (1) and the question in evolved in that case was also about the process-fee deposited and not consumed. On my query he has produced H. M. Sadiq & Co., Lyallpur v. volkart (Pak.) Ltd., Karachi (2) and Rana Taleh Muhammad Khan and another v. Additional District Judge, Sheikhupura and 12 others (3). Both these authorities are in favour of the relaxation of the rigour of the rule with the permission of the Court. 2-A. Even the examination of Order XV I, rule 1, C. P. C. leads to the conclusion that on showing good cause for the omission either in presenting the list or the names of the witnesses the Court has got discretion to grant the permission to do the needful. Looking at the heading of the Order it deals with the summoning and attendance of witnesses and it has nothing to do with the production and examination of witnesses which steps are being regulated by different Orders and Rules provided after Order XVI, C. P. C. Reading rule 1 as a whole it becomes clear that list of those witnesses are to be presented within 7 days as required by sub-rule (1) who are proposed to be called through the aid of the Court. Sub-rule (2) also contains a similar language in the term, that a party shall not be permitted to call witnesses. Sub-rule (3) provides for an application on which summons are to be obtained for the witnesses whose attendance is required in Court. Proviso to sub-rule (3) contains a limitation of time within which application referred to in sub-rule (3) is required to be made. Thus the entire rule is concerned with the calling of the witnesses through the Court and the presentation of list of those witnesses and obtaining summons on application within the time provided by the proviso to sub-rule (3). Rule 7 of the same Order reserves the power in the Court to require any person present in Court to give evidence or to produce documents. Presentation of case and production of evidence are the subjects dealt with by Order XVIII, providing for the hearing of the suit and examination of the witnesses. Rule 2 states the steps in which the party shall state its case and produce his evidence in support of the issue which he is bound to prove. With clear distinction in mind the drafts man has not used any expression from this rule in the Order XVI, rule 1, C. P. C. The step covered by rule 1 is concerned with the presentation of list of witnesses proposed to be called through the Court. Thus the process of calling is understood differently from the stage of presentation of case and production of evidence. Even in rule 1 of Order XVI by sub-rule (2) discretion has been lift with the Court to condone any omission in respect of the witnesses which includes also the omission of filing the list of witnesses, because in both the cases there would be and omission in presenting the list of witnesses to be called through the Court. The only condition on which the discretion is to be exercised is that good cause would be shown by the party who invokes the discretionary jurisdiction of the Court. Normally a person who has presented his claim for adjudication in the Court and the opposite-party has been called upon by the Court to answer his claim and the controversy between the parties is reduced to issues is entitled to prove his claim and it seems unfair on the other part of Court to shut the case of one or the other party merely because a step in the proceedings has been delayed on account of inadvertent omissions bona fide cause. Ordinarily the discretion has to be exercised for the benefit of the litigant party unless it is proved that the party at fault is guilty of contumacious conduct or negligence not excusable reasonably. It is, therefore, misconceived by the learned counsel for the petitioner that sub-rule (1) is the mandatory term and its non-compliance will result in closing the case of the party in the matter of evidence. (1) P L D 1978 Lab. 721 (2) P L D 1976 Lab. 1460 (3) P L D 1979 Lab. 145

4. In the circumstances no illegality has been committed either by the trial Court or by the revisional Court to hold that the respondent was entitled to the -condonation of delay in presenting the list of witnesses after the period provided by sub-rule (1) of rule 1 of Order XVI, C. P. C. This petition has no force and is accordingly dismissed in limine. M. Y. M. Appeal dismissed.