UMAR HAYAT vs ADDITIONAL DISTRICT JUDGE and others

IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition has been filed for leave to appeal against the judgment, dated 16-4-1999 passed by the Lahore High Court, Lahore in Writ Petition No, 6709 of 1999. Relevant para from the impugned judgment is reproduced hereinbelow:--- "4. The plaintiffs have filed a suit for cancellation of documents, inter alia, on the ground that at the time of execution of general power of attorney, they were minors and want to prove the factum of minority through the production of copies of the entries of birth register being maintained by the Union Council, Manga and register of Primary School, Manga. The entries in the birth register of a Union Council and the School being maintained in the school are very relevant to determine the age of a party to a suit and, therefore, the witnesses allowed to be included in the list of witnesses of plaintiffs are very important for the determination of an issue in the suit and although the order of trial Court does not give any reason for allowing respondents application but the justice has been done through the same and the revisional Court has correctly held that meretechnicalities of law should not stand in the way of proper dispensation of justice. Even otherwise, under Order XVI rule 1(2), C.P.C., the trial Court can permit a party to call witnesses other than those contained in the list of witnesses at any time if good cause for the omission of the said witnesses from the list is shown. In their application, the plaintiffs have mentioned that in their list of reliance the above mentioned documents have been mentioned and, therefore, the omission on their part to furnish list of witnesses in time was not intentional and was a mistake and the said witnesses were necessary and their summoning through Court is in accordance with law and justice. This also shows that the plaintiffs throughout intended to produce the above said witnesses in proof of their suit. The above mentioned also shows that the justice has been done and writ cannot be issued against the interest of justice. Dismissed in limine."

3. Learned counsel stated that respondents filed an application for summoning the Secretary Union Council Manga and Record Keeper Circle Primary School Manga, District Lahore after a considerable delay of 3-1/2 years whereas according to him such application must have been filed within the period of seven days in terms of Order XVI, rule 1, C.P.C. Therefore, the order of granting permission to respondents to produce these witnesses after a considerable delay has caused injustice to the petitioner.

4. We have heard the learned counsel and have also gone through the relevant provisions of the law i.e, Order XVI, rule 1 sub-rule (2), C.P.C. Which provides that the Court is competent to grant permission to the petitioner for summoning any witness at any stage subject to showing good cause etc. Since in the instant case the learned Civil Judge vide order, dated 16-4-1999 has granted permission to summon the witnesses for recording evidence before the. Court in exercise of its discretionary jurisdiction and the said order was maintained both by the District Judge as well as the High Court vide judgments, dated 10-3-1999 and 16-4-1999, respectively, therefore, we are of the opinion that no point for interference by this Court in exercise of jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan, is made out.

5. Thus the petition is dismissed and leave to appeal declined.