NATIONAL BANK OF PAKISTAN Versus PUNJAB PROVINCIAL CO-OPERATIVE BANK LIMITED

With the occurrence of learned counsel for the parties this petition is being disposed of as a Pacca case as the arguments were heard at full length.

2. Plaintiff (the Punjab Provincial Cooperative Bank Limited, hereinafter called the respondent) instituted a suit against the defendants (hereinafter called the petitioners) for recovery of Rs.6,53,384. Respondent closed his evidence on 7‑4‑2001 but soon thereafter an application was moved under Order XVI, rules 1 and 2 read with Order XVIII, rule 2 and section 151, C.P.C. for summoning of Mr. Abdul Hameed Sultan, an employee of the petitioner to appear as a witness to prove his Inspection Report, dated 3‑4‑1998. A copy of this report was earlier brought on the file by the respondent as Mark‑A. This application was hotly resisted by the petitioners. The learned trial Court allowed the prayer of respondent made through this application vide order, dated 9‑2‑2002 now impugned through the instant revision petition filed by the petitioners.

3. Learned counsel for the petitioners vehemently argues that the respondent was not entitled to the relief prayed for through the aforesaid application after closing the evidence in affirmative; that the law does not permit any relaxation/concession to the parties to fill up lacunas in the evidence; that the impugned order has been passed on the premises of consideration not tenable in the eye of law and also the same is violative of the law laid down by the Honourable Supreme Court relating to summoning of a witness. In support of the submissions', learned counsel has relied upon 1999 SCMR 799 (Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq) and PLD 1990 Lahore 229 (Sh. Muhammad Sharif Uppal v. Sh. Akbar Hussain and others).

4. On tit, other hand, learned counsel for the respondent forcefully supports the impugned, order by submitting that the same has been passed by the learned trial Cc‑trt strictly in accordance with law and facts.

5. I have considered the submissions, perused the material available on the file, and gone through the judgment cited at the bar.

6. I have noticed that the respondent while leading his evidence brought on the record of the learned trial Court, copy of the Inspection Report in question, dated 3‑4‑1998 which was objected to, therefore, the same was Marked‑A by the learned trial Court. Thereafter, application of the respondent for proving this document through its author was moved which, was allowed mainly on the consideration that such a document was duly relied upon by the respondent in his list or reliance annexed with the plaint. On a Court question learned counsel for the petitioners replied that he would not be in a position to comment upon this observation of the learned trial Court as he had not inspected the file of the learned trial Court. Section 115, C.P.C. requires that the petitioner must append with the revision petitions all the copies of the pleadings, documents etc. necessary for proper adjudication. At, this stage, learned counsel for the respondent produced certified copy of the list of reliance annexes with the plaint of the respondent which clearly demonstrates in its Column‑4 that this very document . has been duly mentioned. For ready reference this column is reproduced:‑‑‑

(1) Inspection Report conducted by Mr. Abdul Hamid Sultan V.P./team leader, dated 3‑4‑1998 be summoned from defendant Nos. 2, 3 and 4.

(2) Original record pertains to plaintiff's A/C No. 10207 be summoned from defendant No.4.

(3) All letters at Serial Nos. 1, 3, 5, 6 and 7 (ii) by the plaintiff to defendant be summoned. "

7. From the above it can safely be held that the respondent did not come forward with an afterthought plea in the context of proving the Inspection Report in-question prepared by an employee of the National Bank of Pakistan/present petitioners. Thus a prayer in this perspective does not fall within the proposition to the effect that an indolent litigant should not be allowed to fill in lacunas in his evidence. It is now well established proposition of law, justice and equity that "all the rules of the procedures are meant for advancing and promoting the cause of justice and not for the purpose of entrapping the litigant into a blind alley." Merely because name of an official witness (author of the report in-question) was not included in the list of witnesses would not be a sufficient ground to bar jurisdiction of trial Court to order such witness to be summoned through the process of the Court as he could not be produced privately and whose statement would definitely contribute to the just decision of suit. A perusal of Order XVI, rule 1(2), C.P.C. fully indicates that the bar against the calling of witness through Court whose name did not appear in the list of witnesses filed by a party is not absolute. The Court has the jurisdiction to allow a witness to be summoned whose name was not included in the list of witnesses, if good cause for omission of his name from the list has been shown. In this regard, reliance can safely be placed on the following case law:‑‑‑

(1) 1995 CLC 327 (Mst. Shahnaz Begum and 4 others v. Ashiq Hussain Bhatti and 2 others);

(2) 1999 SCMR 799 (Mst. Musarrat Bibi and 2 others v. Tariq Mehmood Tariq);

(3) PLD 1980 Lahore 495 (Ghulam Mustafa v. Muhammad Ilyas and 3 others);

(4) 1994 CLC 1920 (Bashir Ahmad v. Fazal Din) and

(5) 1985 CLC 2398 (Fazal‑e‑Haque v. Muhammad Saeed).

8. I am convinced that the learned trial Court has exercised his jurisdiction) judiciously within the true spirit of Order XVI, rules 1(2), C.P.C. while passing the impugned order which otherwise also does not suffer from any material irregularity and illegality warranting indulgence of this Court under section 115, C.P.C.

9. The judgments cited by learned counsel for the petitioners cannot, be advantageously used in the present set of circumstances.

10. Resultantly, the instant petition stands dismissed leaving the parties to bear their own costs.

S.A.K./N‑226/L Petition dismissed.