List of witnesses

2023 YLR 37 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O. XVI, R.1List of witnessesMatter to be decided on merit

Respondent/ plaintiff filed suit for specific performance of contract on basis of oral agreement to sell against petitioner/ defendant

Issues were framed and parties were directed to submit their list of witnesses within seven (7) days but petitioner/defendant had no knowledge about the said order

When evidence of respondent/plaintiff was closed then it came into knowledge of petitioner/ defendant that list of witnesses was not submitted by petitioner within time

Petitioner/defendant filed an application before Civil Court for submitting list of witnesses which was dismissed

Petitioner filed a civil revision before Revisional Court which was also dismissed

Held, that order sheet appended with the petition revealed that on 10..03.2016 application filed by respondent for temporary injunction was allowed and after farming of issues Trial Court directed the parties to submit list of witnesses and certificate for readiness to produce evidence within seven (7) days, said order was passed by Trial Court in presence of both parties

Suit was adjourned on many dates for recording of evidence of the plaintiff and evidence of respondents witnesses was recorded and counsel for the petitioner conducted cross-examination upon them

Plaintiff produced his documentary evidence and then the case was fixed for evidence of petitioner/defendant

Counsel for the petitioner filed an application before Trial Court for submitting list of witnesses at belated stage which was dismissed by Trial Court, which mean that counsel for the petitioner had been appearing in the Court but did not file application for submitting list of witnesses

Counsel for the petitioner requested for only one opportunity to submit list of witnesses, even on payment of costs as valuable rights of the petitioner were involved in the matter

Petition was allowed by High Court and Trial Court was directed to grant only one opportunity and fixed a date for submitting list of witnesses by the petitioner and if the cost imposed was not paid or list of witnesses was not submitted on the fixed date as directed, Trial Court should proceed with the matter in accordance with law.

2023 PLD 139 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 6, 7(10) & 7(11)Specific Relief Act (I of 1877), Ss. 42 & 54

Civil Procedure Code (V of 1908), O. XVI, R. 1 [as amended by Lahore High Court, Notification No. 273/Legis/XI-Y-26 dated 15-08-2018]

Billing dispute

List of witnesses

Amendment in law

Civil Procedure Code, 1908, provisions of

Applicability

Petitioner/plaintiff filed suit for declaration and injunction disputing bill issued by respondent/ Company

Grievance of petitioner/plaintiff was that Trial Court held that list of witnesses was not to be filed by respondent/company

Validity

Trial Court was bound to follow provisions of Civil Procedure Code, 1908, in all matters which were not expressly excluded through provision of special procedure in Gas (Theft Control and Recovery) Act, 2016

Where Gas (Theft Control and Recovery) Act, 2016 did not provide special procedure to do a particular thing in a particular manner, provisions of Civil Procedure Code, 1908 were applicable

Once Petition for Leave to Appear (PLA) was granted, it was treated as a written statement as envisioned by C.P.C.

Summary procedure regarding trial of the suit was converted into ordinary procedure requiring Trial Court to frame issues and record evidence as provided in C.P.C. and Qanun-e-Shahadat, 1984 subject to the provisions of Gas (Theft Control and Recovery) Act, 2016

After grant of PLA, unless defendant failed to fulfill condition attached to it, if any, the only concession provided to the parties to the suit was permission or facility to file affidavits in respect of examination-in-chief of their witnesses

Suit and application for permission to submit list of witnesses were filed on 29-11-2017 and 24-01-2020, respectively and order in question was passed on 03-11-2020 when the amendment by Lahore High Court, Notification No. 273/Legis/XI-Y-26 dated 15-08-2018 had come into effect on 01-11-2020

Amendment was in the form of substitution in O. XVI, R, 1, C.P.C. was procedural, beneficial and curative in nature which was enforced before decision of the application, therefore, substituted text of O.XVI, R.1, C.P.C. was applicable

Provisions of Civil Procedure Code, 1908 were applicable to a suit instituted under section 6 of Gas (Theft Control and Recovery) Act, 2016 in all matters, where provisions of Gas (Theft Control and Recovery) Act, 2016 did not prescribe a special procedure regarding any aspect of the trial

Respondent/company was required to submit list of witnesses as provision of O.XVI, R. 1, C.P.C. was applicable to suit under S. 6 of Gas (Theft Control and Recovery) Act, 2016

Non-submission of list of witnesses did not bar respondent/company to produce its own witnesses for recording of evidence and production of documents on the date fixed by Trial Court for recording of evidence

High Court declined to interfere in the order passed by Trial Court

Constitutional petition was dismissed, in circumstances.

2022 MLD 121 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O.XVI, R.1List of witnessesOmission to mention name of witnessGranting permission to produce witness at belated stage"Good cause" and "reasons to be recorded"Scope

Reason for omission of a name from the list of witnesses had to be legally justifiable to fulfil the requirement of "good cause", and bald claims that it was in the interest of justice or it was to facilitate the court in deciding the matter would not be a legally sufficient reason for that purpose

Such requirement had been imposed apparently to keep a judicial check on unbridled/absolute discretion of the court

What would qualify to be valid reasons for the grant of permission under O.XVI, R.1(2), C.P.C., had been a subject matter of judicial discourse

Primary focus of the Court was to be on the points: firstly, how the permission sought to produce witness not mentioned in the list of witnesses, if not granted, could curtail access to justice of the applicant; secondly, how much administration of justice was likely to be burdened in the proceedings before the court if the permission sought was granted; and thirdly, how the right to fair trial as enshrined in Art.10A of the Constitution would be curtailed by the grant/refusal of such an application

Such a focus would shift away from technical knockout of the litigants for their omissions and inefficiencies.

2022 CLC 856 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O.XVI, R. 3List of witnessesLimitationException'Good cause'Scope

Actual purpose of providing names of witnesses through list of witnesses to be filed under O.XVI of C.P.C. was to enable the other party to know what evidence had to be produced so that it may not be taken by surprise and evidence might not be fabricated later on

However, on 'good cause' being shown the Court in its discretion, if judicial conscious thereof was satisfied with justifiable reason could allow the party to produce witnesses whose names were not mentioned in the list of witnesses.

2019 PCrLJ 665 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 200, 201 & 202Private complaint, filing ofList of witnesses

For proceedings under Ss. 200, 201 or 202, Cr.P.C., it was not a requirement that lists of witnesses must be appended with the complaint or that all the documents must be mentioned or appended therewith.

2019 CLC 362 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O. XVI, Rr. 1, 7-A & 8Suit for declarationList of witnessesSummoning of witnesses through process of CourtScopeAffirmative evidence on behalf of plaintiff was recorded and right to produce evidence in rebuttal was reservedPlaintiff moved application for summoning of witnesses through process of Court

Application was dismissed on the ground that plaintiff had not mentioned the reason as to why the evidence of said witnesses was relevant to the matter in issue

Validity

Party to a lis to be successful in leading evidence was to file firstly its list of witnesses within seven days of framing of issues

Plaintiff filed list of witnesses within seven days of the framing of issues

Plaintiff was yet to lead her evidence in rebuttal in the present case

Application of plaintiff for summoning of witnesses was supported by an affidavit whereas defendants' reply was not supported by a counter affidavit

Mere non-filing of counter affidavit by the defendants was sufficient to accept the reason set forth by the plaintiff in her application for summoning the witnesses through process of Court

Party seeking summoning of witnesses named in the list through process of Court was required to file requisite application and to deposit the diet money/process fee at least fourteen days prior to the date of hearing

Plaintiff filed her application for summoning of witnesses before she began to lead her evidence in rebuttal

Plaintiff had filed application in accordance with law

If a party was unable to produce the attendance of its witnesses then it could resort to the machinery of the Court for summoning the witnesses provided it had moved an application within stipulated period

Once an application was moved and allowed and diet money/process fee was deposited then Court was to summon the witnesses

If witnesses did not appear despite service then it was for the Court to employ its coercive machinery in order to procure the attendance of said witnesses

Court could not require the party to produce the attendance of the witnesses on its own recognition or on its own responsibility

Courts below had erred in law and facts in refusing to allow the plaintiff to summon her witnesses through process of Court

Impugned orders passed by the Courts below were set aside and prayer of plaintiff for summoning the witnesses through process of Court was allowed

Constitutional petition was allowed accordingly.

2018 YLR 2499 PESHAWAR-HIGH-COURT Judicial Precedent

O. XVI, Rr. 1 & 2Suit for declarationList of witnessesPermission to call or produce witness other than those mentioned in the list of witnessesGood causeScope

Plaintiffs after closure of evidence submitted an application for production of additional evidence which was dismissed and revision petition was also dismissed

Validity

Permission to summon a witness not included in the list of witnesses could be allowed by the Court provided a good cause was shown for such omission

Case after closure of evidence of plaintiffs was adjourned for evidence of defendants

Parties after framing of issues should submit list of witnesses in the Court within seven days

Court could permit to summon only those witnesses who were mentioned in the list of witnesses

Plaintiffs in the present case had omitted to submit list of witnesses within statutory period of seven day after settlement of issues

Party could not be permitted to summon witnesses beyond the list so submitted except with the permission of Court showing good cause for such omission

Court in order to grant such permission had to record reasons

Constitutional petition was dismissed in circumstances.

2018 MLD 1181 PESHAWAR-HIGH-COURT Judicial Precedent

O. XVI, Rr. 1, 7 & 14 & O. IX, R. 13 & S. 12 (2)Ex-parte decree, setting aside ofList of witnessesOmission to file list of witnesses or failure to mention the name of witness in the list of witnessesEffectSummoning of witness through CourtRequirementsGood causeScope

Application for recording statement of witness appearing before the Court was filed which was dismissed but Appellate Court accepted the same

Validity

Name of witness whose statement was required to be recorded had not been cited in the list of witnesses

Parties were bound to submit list of witnesses in the Court whom they proposed to summon either to record evidence or produce document

No witness could be summoned by Court if list of witnesses was not submitted by the concerned party

Failure of party to submit list of witnesses in the Court would deprive the said party to request the Court to summon his witnesses

Party who did not obey and comply with the requirements of law was not entitled to get support of law to the extent of his own negligence, indolence and failure

Party could not be permitted to summon witnesses other than those named in list of witnesses except with the permission of the Court

Submission of list of witnesses was condition precedent for further request for summoning other persons as witnesses with the permission of Court

Provisions of O. XVI, R. 1(2), C.P.C. would not be applicable when conditions prescribed under O. XVI, R. 1(1), C.P.C. were not complied with

Court was to record reasons for granting permission to summon witness whose name was not mentioned in the list of witnesses

Party was to show good cause for omission of said witness from the list of witnesses

Court had powers to require any person present before it to record evidence or produce any document then and there in his possession or power

Said power of the court could be exercised suo motu or on application or on request of a party

If Court at any stage considered necessary to examine any person other than a party to the suit and not summoned as a witness by any party then such Court could of its own motion cause such person to be summoned as a witness to record evidence or produce any document in his possession on a day to be appointed and examine him as a witness or require him to produce such document

Witness had appeared in the present case and Court was empowered to direct a person present before it to give deposition even though he might not have been named in the list of witnesses

Trial Court had erred in not allowing the party to summon the witness and revisional Court had rightly set aside the said order with direction to summon him as a court witness

Impugned judgment/order passed by the Appellate Court was based on proper appreciation of law

Constitutional petition was dismissed in circumstances.

2018 MLD 1563 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. XIII, R. 2, O. XVI, R. 1 & S. 148Qanun-e-Shahadat (10 of 1984), Art. 131List of witnessesFiling ofLimitationCondonation of delayPlaintiff did not produce evidence and defendants were directed to record their evidencePlaintiff after recording evidence of defendants moved application for filing of list of witnesses and documentsContention of plaintiff was that due to bona fide mistake he could not file list of witnesses within timeValidityBona fide mistake was not good cause to allow the applicant to submit list of witnesses at belated stageApplication had been filed to prolong the proceedingsWitnesses proposed to be examined by the plaintiff were voluntaryDocuments sought to be produced by the plaintiff had already been filed with the plaint and exhibited by the defendantsCourt would ensure that parties did not lead irrelevant evidenceApplication for permission to file list of witnesses was dismissed with costs

Plaintiff would be entitled to lead evidence by way of affidavit-in-evidence.

2014 CLC 711 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.12Civil Procedure Code (V of 1908), O.XVI, R.1Constitution of Pakistan, Art.199Constitutional petitionSuit for specific performance to sellList of witnessesAdditional evidenceDefendant moved an application to file list of witnesses including one advocate who was Notary Public

Application was dismissed by Trial Court but Lower Appellate Court, in exercise of revisional jurisdiction, allowed defendant to file list of witnesses

Validity

Notary Public having attested documents could go to the roots of entire controversy between the parties

Allowing such witness was necessary and indispensable for a just and fair decision of a case on its merits

Such was done in the interest of justice and to avoid miscarriage of justice

Lower Appellate Court had rightly exercised jurisdiction vested in it and there was no infirmity or illegality in the order

Petition was dismissed in circumstances.

2010 CLC 1424 ELECTION-TRIBUNAL-PUNJAB Judicial Precedent

Ss. 55 & 63Civil Procedure Code (V of 1908), O. VI, R.15Election petitionDefective verificationEffectNon-bifurcating of paragraphs-Failure to 'mention date and place of verificationList of witnesses

Returned candidate sought dismissal of election petition on the ground that the same did not contain proper verification as mentioned in O. VI, R.15, C.P.C.

Validity

Election petitioner while filing petition did not comply with mandatory requirements of law regarding verification of petition and omitted to bifurcate the paragraphs verified on his own knowledge and on information received by him and believed to be true, non-compliance of which was fatal

Mandatory for election petitioner to specifically mention as to which paragraphs of election petition were verified as per his own knowledge and what he believed to be true on the basis of information received as the same was not a formality but might has different consequences

Petitioner neither mentioned the place where verification was made nor did he mention the date on which contents of election petition were verified

Verification was not made by election petitioner in accordance with law and the same being so, the mandatory provision of S.55 (3) of Representation of the People Act, 1976, had not been complied with

Petitioner even did not consider it necessary to support the contents of election petition with his affidavit

Petitioner also did not even verified the annexures appended with the petition as required by the provisions of S. 55(3) of Representation of the People Act, 1976

Even list of witnesses was not appended by petitioner to whom he desired to produce at trial or the gist of facts which such witnesses had to prove at trial along with precise statement of material facts on which petitioner relied

Requirement of law was mandatory in nature and such defects in verification were fatal to petitioner's case

Election petition was dismissed in circumstances.

1981 SCMR 150 SUPREME-COURT Judicial Precedent

O. XVI, rr. 1 & 2-List of witnesses-. Considerations relevant .for determining question whether or not a party had shown good cause for its failure to file a list of witnesses : plausible explanation by party, prejudice if any to opposite-party, and inconvenience to Court Reasonable explanation given, no prejudice caused to opposite-party in its defence, and Court not unduly inconvenienced-Party's evidence held, should not be shut out for its failure to file list within 7 days of framing of issues.