1985 PLP 2248 (CLC)

This revision petition seeks to set aside the judgment dated 12-11-1979 pronounced by Mr. Ihsanul Haq Sethi, the learned District Judge Bahawalnagar who did not permit the petitioner to produce his evidence on the date of hearing.

2. The facts relevant for our purpose in Substance are that Muhammad Abbas brought a suit for the recovery of Rs. 15,000 against Muhammad Yusuf, the petitioner under Order XXXVII, rule 2, C.P.C. on the basis of a chaque. The learned District Judge Bahawalnagar permitted the petitioner to defend the said suit. The petitioner put in a written statement and the necessary issues were formulated on 27-1-1979. For the first time the parties were directed to produce evidence on 7-3-1979 and then the case was procrastinated from time to time. The parties had yet produced any evidence and on 3-9-1979 the petitioner applied to the learned District Judge for summoning the witnesses and the list of the witnesses was given therein. The date of hearing in that case was 5-11-1979. That petition was contested by the other party and the learned District Judge did not permit the petitioner to adduce any evidence as the list of witnesses was not submitted in time. For the sake of convenience rule 1 of Order XVI is reproduced ad under:- "(1) Not later than seven days after the settlement of issues, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents. (2) A party shall not be permitted to call witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list and if the Court grants such permission, it shall record reasons for so doing. (3) On an application to the Court or such officer as it appoints in this behalf, the parties may obtain summons for persons whose attendance is required in Court: Provided that no summons shall be issued for service on a person under rule 8 unless an application in that behalf is made not later than fourteen days prior to the date fixed for the hearing of the suit and the necessary expenses for the summoning of such persons are deposited." It may be seen that the above provisions of law envisage that in case the list of the witnesses is not submitted in time, permission can be sought from the Court after showing good cause for the omission of the parties to summon the said witnesses in time.

4. The learned counsel for the petitioner has contended that the High Court Rules and Orders had added the following proviso to rule 1, Order XVI, C.P.C. which may be reproduced as under:- "Provided that no party who has begun to call his witnesses shall be entitled to obtain process to enforce the attendance of any witness against whom process has not previously issued, or to produce any witness not named in a list, which must be filed in Court on or before the date on which the hearing of evidence on his behalf commences and before the actual commencement of the hearing of such evidence without an order of the Court made in writing and stating the reasons therefor."

5. It has further been submitted that in accordance with sections 122 and 127 of the C.P.C., this Rule has not been deleted and it was in the mind of the learned counsel for the petitioner that he could have submitted the list subsequently and that was a good cause for summoning the witnesses on that day. It has been added that none of the parties had yet examined any witness till the date of that application and even the respondent had not yet filed the list of witnesses as' envisaged in Order XVI, rule 1, C.P.C. In the circumstances, the learned District Judge should have exercised jurisdiction in favour of the petitioner which vested in him. Since the said jurisdiction has not been exercised properly, so the impugned judgment is revisable. I, therefore, quash the impugned judgment and order the learned trial Court to summon the witnesses of the petitioner mentioned in the list. Since no body appeared on behalf of the respondent, I make no order as to costs. M.Y.H. Petition allowed.