2023 PLP 431 (YLR)

MUHAMMAD RAZA QURESHI, J.

Through this Civil Revision under section 115 of the Code of Civil Procedure, 1908 the Petitioner has challenged Impugned Order dated 26.06.2018 passed by the learned Trial Court. Pursuant to the Impugned Order the Application for summoning of witnesses was dismissed.

2. Today despite appearing name of learned counsel for the Petitioner in the cause list nobody has entered appearance on his behalf though case was called repeatedly. Therefore, this Court is deciding the Civil Revision upon perusal of the record.

3. Precise facts relevant for disposal of instant Civil Revision are that the Petitioner filed a Suit for recovery of Rs.1,070,000/- on the basis of Cheque under Order XXXVII, C.P.C. issued by the Respondent in favour of the Petitioner.

4. The Suit was contested by the Respondent by submitting Application for leave to defend and subsequently through written statement. Out of divergent pleadings of the parties, issues were framed on 14.10.2017 and the Suit was adjourned to 30.10.2017 for evidence of the Petitioner/Plaintiff.

5. It is pertinent to mention that both parties submitted their respective list of witnesses on 14.10.2017. The Petitioner/Plaintiff on 30.10.2017 filed an Application for summoning of witnesses namely Manager of National Bank of Pakistan, Dunyapur Branch and Manager of Muslim Commercial Bank Limited, Mailsi Branch by pleading that evidence of the said witnesses is necessary for just decision of the case. It is noteworthy that the names of above said witnesses were not mentioned in the list of witnesses and the only cause disclosed in the Application was an inadvertent mistake. The Application was obviously resisted by the Respondent. Pursuant to Impugned Order dated 26.06.2018 the learned Trial Court dismissed the Application for summoning the witnesses.

6. In the facts and circumstances of the case, it is an admitted position that the list of witnesses of both the parties were filed and the name of proposed witnesses mentioned in the Application to be summoned were not mentioned in the list of witness of the Petitioner/Plaintiff and as per provision of sub-Rule (2) of Order XVI, Rule 1, C.P.C. the intention of the legislature is that as per Order XVI, Rule 1, C.P.C. the party can only call those witnesses to whom it propose to call either to give evidence or to produce the documents. According to sub-Rule (2) the intention of the legislature is augmented, as a specific prohibition has been placed, preventing a party to call the witnesses and, as per the Lahore High Court Amendments even to produce witnesses other than those whose names are mentioned in the list required to be filed under sub-Rule (1). Undoubtedly, this is a mandatory provision of law as entails serious consequences of precluding a party from calling, through aid of Court, or even to produce the witnesses if their names do not appear in the requisite list, in terms of sub-Rule (2) of Rule 1 of Order XVI, C.P.C. a delinquent party who omits the name of witnesses is allowed to make up his default and seek indulgence of the Court to summon and produce the witnesses but only after meeting and fulfilling the condition of good cause for the omission of the said witnesses from the list.

7. According to the mandate of law Court is bound to record reasons for such a permission. Therefore, in terms of law the Court can only record reasons for permission if the subsequent Application exhibits good cause for an earlier delinquency. The wisdom of public policy and law in this regard is that an adversary should not be taken by surprise in the course of trial of the suit and the parties before the commencement of trial, must be aware and should be fully prepared as to what kind of evidence is accepted to be given by the witnesses of the opposite side, so that they can make necessary preparation for the cross-examination. The wisdom of law also targets to prevent the concoction and fabrication of evidence and to make up the litigants during the course of trial, meaning thereby to bind the parties to such genuine evidence which is available to them at the time of initiation of the trial. The intention of the legislature is to curb a situation where party to the suit should not subsequently fudge witnesses to make up their deficiencies.

8. Though in terms of law no hard and fast rule 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 its inaction/omission should be excused. Therefore, the good cause should be which appeal to judicial conscious of the Court that justified reasons as a party in default cannot, as a matter of right or as a matter of course, without assigning any good cause for the omission ask for calling the witnesses to be summoned nor to be produced only on account of a lame excuse and reasons and bald assertion.

9. This Court is dissatisfied with the cause of delinquency disclosed in the Application of the Petitioner i.e the inadvertently mistake is indeed a lame excuse and does not appeal to judicious conscious or satisfy the mandate of law as envisaged by the provisions of Order XVI of C.P.C. The learned Court below was left with no other option but to dismiss the Application filed by the Petitioner. Reliance in this regard is placed on "Muhammad Anwar and others v. Mst. Ilyas Begum and others" PLD 2013 SC 255, "Mst. Safeer Begum and others v. Additional District Judge and others" PLD 2011 Lahore 14 and "Rana Taleh Muhammad Khan and another v. Additional District Judge, Sheikhupura and 12 others" PLD 1979 Lahore 145.

10. I see no legal infirmity in the Impugned Order passed by the learned Courts below and consequently, this Civil Revision filed by the Petitioner/Plaintiff is hereby dismissed with no order as to costs. SA/M-167/L Petition dismissed.