THE AUSTRALASIA BANK LTD. vs MESSRS MANGORA TEXTILE INDUSTRIES,SWAT

FAKHRUDDIN G. EBRAHIM, J. This petition for leave to appeal was, vide our order dated 16-9-1878, converted into appeal and allowed for reasons to be recorded. Our reasons are as follows:

2. The appellant Bank filed a suit for recovery of Rs. 7,96.730 against the respondents in July, 1965. The trial Court framed preliminary issues but the suit remained pending for disposal of these issues for almost 11 years. On 31-1- 1977 the trial Court framed the issues on merits as well as ordered that both, the preliminary and issues on merit will be heard and disposed of together instead of pronouncing judgment in piecemeal. On 6-6-1977 the appellant made an application under Order XVI, rule 2, C. P. C. As substituted by Law Reforms Ordinance XII of 1972 setting permission to, file a list of witnesses and were proposed to be examined on behal f of the appellant-Bank. The trial Court by its order dated 20-9-1977 rejected this application on the ground that such a list should have been under rule 1 of Order XVI, C. P. C., filed within 7 Days of the date of framing of issues and if the appellant was not in a position to file such a list, an application for extension of time should have bear made for this purpose expeditiously which application was also not male for almost five month, of the date of framing of the issues and that otherwise no good cause was shown for allowing the appellant-Bank permission to file list of its witnesses at such a late stage.

3. Being aggrieved, the appellant filed a revision in the High Court which was dismissed by the learned Single Judge vide his order dated 1-3-1980 on the ground that the trial Court had rightly exercised its discretion in rejecting the appellant's application under rule 1 of Order XVI, C. P. C. Which is the order impugned in the present appeal.

4. Mr. A. R. Sheikh, the learned Senior Counsel appearing for the appellant raised two contentions in support of this appeal. Firstly that the appellant had shown good cause for not filing the list of witnesses within the time prescribed under Order XVI, rule 1, C. P. C. And the Court therefore ought to have per remitted tile appellant to file its list of witnesses uncles rule 2 of said Order XVI, C. P. C. The second contention: of the learned counsel was that notwithstanding the failure of the appellan t to file the list, the appellant-Bank cannot be denied the right to examine such witnesses as the appellant may produce at the trial, far the bar contained under Order XVI, rule I is limited to summoning witnesses through Court and does not have the effect of preventing a party from examining witnesses produced by a party , without recourse to Court summons.

5. Coming to the first contention, we are of the view that the considerations relevant for determining the question whether or not a party had shown good cause for its failure to fir a list of witnesses are a plausible explanation by the party , prejudice if any to the opposit e-party , and inconvenience to the Court. If a reasonable explanation is given and no prejudice is caused to the opposite-party in its defence and the Court no unduly inconvenienced the party's evidence should not be shut out for it failure to file the list within 7 days of the framing of the issues. In the present case Bank did give a reasonable explanation inasmuch as the appellant-Bank had been nationalized and the officers of the Bank who were aware of the facts of the case could not be easily traced after a lapse of over 12 years for some of them had been transferred from place to place some had retired and one of there had even died.

Furthermore, the grant of the application would not have prejudiced the respondents in defending the Suit or cause undue inconvenience to the Court inasmuch as the suit was as old as of 1965 which had remained undisposed of for no default on the part of the appellant-Bank. We have also noticed the statement made by Mr. A. R. Sheikh that he does not wish to summon any witnes s but only desire that witnesses present in court may be allowed to be examined. We are therefore of the view that the courts below had erred in not granting the Bank had agreed to produce its own witnesses without recourse to summons the Court.

6. In this view of the matter it is unnecessary to examine the second contention of the learned counsel.

7. This appeal is therefore allowed on merit with the result that the trial Court will examine the witnesses produced by the Bank at the hearing of the suit. In the circumstances there will be no order as to costs.