Haji MUHAMMAD TUFAIL vs MUHAMMAD IQBAL

ORDER

' On 12-3-2004 the respondent filed a suit for recovery of the Rs.15,00,000 against the petitioner under Order XXXVII, C.P.C. The petitioner put in appearance and was granted leave to appear and to defend the suit. A written statement was filed. Issues were framed on 22-9-2004 and the case was adjourned for recording evidence of the respondent. On 6-11-2004 the respondent was present in Court along with his witnesses when an objection was raised that since a list witnesses in terms of Order XVI, rule 1, C.P.C. As amended by this Court on 2-10-2001 has not been filed, the witnesses cannot be examined. He objection was overruled by the learned ADJ, Multan, on 6-11-2004.

2. Learned counsel for the petitioner contends that it is obvious that the amendment was made by this Court in Order XVI, rule 1, C.P.C. To undo the effect of the Full Bench judgment of this Court in the case of Ghulam Murtaza v. Muhammad Ilyas and 3 others (PLD 1980 Lahore 495), approved by the Hon'ble Supreme Court of Pakistan in the case of Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq (1999 SCMR 799) and after the introduction of the word "produce", as suggested by the Hon'ble Acting Chief Justice in the said case Ghulam Murtaza, the effect would be that even such a witness who is present in Court cannot be examined unless and until a list containing his name has been filed in terms of Order XVI, rule 1, C.P.C.

3. I have given some thought to the said contention of the learned counsel. I have again examined the judgment delivered by a Full Bench of this Court in the said case of Ghulam Murtaza, with the assistance of the learned counsel. I find that the distinction between the term "call" and "produce" was made by their Lordships after comparing the provisions of Order XVI, rule 1, C.P.C. With those of Order XVIII, rule 2, C.P.C. And Order XVIII, rule 4, C.P.C. I will refer here to para. 9 of the leading opinion of the Hon'ble Acting Chief Justice at page 503 of the report wherein it has been observed that rules 2 and 4 of Order XVIII, C.P.C. Should have also been deleted or amended in the light of the amendment made in rule 1 or Order XVI, C.P.C. Similarly, Mr. Justice Abdul Shakurul Slam (as his lordship then was) while agreeing with the leading opinion observed at page 505 of the report that the witnesses in attendance shall be examined in accordance with the provisions of Order XVIII, rule 4 C.P.C. As well. Now the position is that even after the said amendment whereby the word produced has been inserted in Order XVI, rule 1, C.P.C. Without corresponding amendment vis-a-vis rules 2 and 4 of Order XVIII, C.P.C., the situation still remains the same so long as Order XVIII, rule 2 and Order XVIII rule 4, C.P.C. Are in the field. The reason being that the matter of witnesses present in Court is to be governed by rules 2 and 4 of Order XVIII, C.P.C. Which remained intact in their original form.

4. The civil revision accordingly is dismissed in limine.