IQBAL PAREKH and 4 others vs KARACHI BUILDING CONTROL AUTHORITY

ORDER

1. ' NADEEM AZHAR SIDDIQI, J.--- By this application the defendants Nos. 4 and 5 have sought review of order dated 11-12-2006 by which the permission was granted for examination of P.W.2 with the observation that the Commissioner is allowed to record the evidence of P.W.2 subject to any objection that the defendant may take at the time of arguments.

2. ' The counter-affidavit to the said application was filed by the plaintiffs.

3. ' The learned counsel for defendants Nos.4 and 5 submits that the plaintiffs have not filed any list of witnesses, therefore, are not entitled to examine any witness without filing of list of witnesses within seven days as required under Order XVI, rule 1, C.P.C. He has relied upon the reported case of Ahmed Khan v. Naseer Ahmed and 3 others 1999 SCMR 803.

4. ' The learned A.A-G. And the learned counsel for defendant No,1 have submitted that this is a matter between the plaintiff and the defendants Nos.4 and 5 and they have nothing to do with the said controversy.

5. ' In the instant case the issues were settled on 5-10-2005 and on the same date Mr. Rizwan Ahmed Siddiqui, Advocate was appointed as Commissioner to record the evidence of the parties. On perusal of the record it appears that after framing of the issues no list of witnesses has been filed as provided under Order XVI, rule 1, C.P.C. The plaintiffs have filed the affidavits-in-evidence of two witnesses before the learned Commissioner. Out of which one witness was cross-examined by the learned counsel for the defendants Nos. 4 and 5 and he has objected for the examination of other witness. The matter was referred to the Court and order impugned in this application was passed.

6. ' The contention of the learned counsel for defendants Nos.4 and 5 is that unless a list of witnesses containing the names of the witnesses has been filed no witness can be examined.

7. 'Order XVI, rule 1. C.P.C. Provides that a list of witnesses is to be filed not later than seven days after settlement of issues. Order XVI, rule 2, C.P.C. Provides that a party shall not be permitted to call witness other than those contained in the said list except with the permission of the Court. The word "call" was interpreted by the Honourable Supreme Court of Pakistan in the reported case of Mst. Mussarat Bibi v Tariq Muhammad Tariq 1999 SCMR 799 and while approving the judgment of Lahore High Court reported as Ghulam Murtaza v. Muhammad Ilyas and 3 others PLD 1980 Lah. 495 has held that call means "call of witness under the authority of the Court regarding which the list has to be presented within seven days in settlement of issues". It was further held in the same judgment that the parties will have to comply with rule 1 of Order XVI, C.P.C., if they desire to produce their witnesses under the authority of the Court." The consequence for not filing list of witnesses is that the party not filing the list of witness cannot ask for issuance of summons to witness.

8. 'In this case the P.W.2 has voluntarily appeared before the learned Commissioner by filing his affidavit-in-evidence and the plaintiffs have not asked for issuance of summons to the witness.

9. Under Order XVI, rule 1, C.P.C. The party, who has not filed list of witnesses, cannot ask for issuance of summons to the witness, but the said provision of law cannot be pleaded as a bar against the party whose witness has voluntarily come to the Court for recording his evidence. In the Full Bench's Judgment of Lahore High Court in the reported case of Ghulam Murtaza v. Muhammad Ilyas and 3 others PLD 1980 Lah. 495 it was held that parties are at liberty to bring witnesses along with them on the date when the case is fixed for evidence and the court cannot refuse recording of their evidence. In the judgment cited by the learned counsel for defendants Nos.4 and 5 the permission was not allowed to call the witness for the reason that no explanation has been furnished for calling the witness under the authority of the Court. It is to be noted that non- submission of list of witnesses does not take away the right of the parties to produce witness in Court on their own and if the witness is present in Court the Court cannot refuse to examine him.

10. Furthermore, the witness was allowed to be examined subject to objection that the defendant may take at the time of arguments which fully safeguard the interest of the defendants Nos.4 and 5.

11. ' The application also appears to be barred by Article 176 of 1st Schedule of the Limitation Act. The order was passed on 11-12-2006, whereas the instant application was filed on 10-1-2007 after the limitation prescribed by Article 176 which is 20 days.

12. ' In view of the above reasons this application has no merits and was dismissed by short order dated 5-5-2008.