Haji KHADIM HUSSAIN Versus AZMATULLAH

SHAKEEL AHMAD, J .---Petitioner Haji Khadim Hussain and another filed a civil suit praying for declaring etc to the effect that the property in dispute was owned by Mst. Kausar Begum daughter of Sher Muhammad, and that, after her death the property in question devolved upon the petitioners and the defendants Nos.3 to 7. They also sought declaration to the effect that the defendants Nos.1 and 2 were not borne out of the wedlock of Ghazi Abdullah Jan and Mst. Kausar Begum, and that, the said Mst. Kausar Begum and Abdullah Jan died issueless.

2. After service of summons, the defendants put their appearance, submitted their written statements, from the pleadings of the parties issues were framed, pro and contra evidence was recorded, after closure of evidence on 08.01.2014, the petitioners submitted an application on 16.01.2014 for production of additional evidence. The learned Civil Judge-II, D.I.Khan, dismissed the petition of the petitioners vide order dated 01.02.2014. The petitioners felt aggrieved, and moved the District Judge, D.I.Khan in his revisional jurisdiction. The learned District Judge, after hearing the parties dismissed the revision petition vide order dated 19.5.2015. Not contented with the same, the petitioners have filed the instant constitutional petition before this Court.

3. It was mainly contended by the learned counsel for the petitioners that, it was incumbent upon the learned lower fora to have granted the permission to produce additional evidence.

4. Arguments heard and record perused.

5. Order XVI, Rules 1 and 2 of the C.P.C. confers the powers to the Court to grant permission to call or produce witnesses other than those contained in the list of witnesses, but permission to call a witness not included in the list of witnesses could be allowed by the Court provided good cause is shown for omission to include that witness in the list of witnesses. For convenience Order XVI, Rules 1 and 2 are reproduced herein below:--

1. Summons to attend to give evidence or produce document.---(1) Not later than seven days after the settlement of issues, the parties shall present in Court a [certificate of readiness to produce evidence, along with a] list of witnesses whom they propose to call either to given evidence or to produce documents.

(2) A party shall not be permitted to call witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; and if the Court grants such permission, it shall record reasons for so doing.

6. Perusal of the record transpires that after closing evidence of the plaintiffs, case was adjourned for production of evidence of defendants. Provision of Order XVI, Rule 1, C.P.C. requires that after framing of issues, parties should present in the Court list of witnesses within seven days and the Court could permit only those witnesses who were mentioned in the list of witnesses. In the instant case, the petitioners have omitted to submit list of witnesses within statutory period of seven days after the settlement of issues. A party is not permitted under Order XVI, C.P.C. to call witnesses beyond the list so submitted, except with the permission of the Court to be secured on showing good cause for the omission which permission is to be submitted by according reasons therefor. Since it was not a case of lack of lawful authority, the writ petition is, therefore, not maintainable before the High Court.

7. For the reasons stated above, I do not find any merit in this petition and dismiss it in limine.

ZC/187/P Petition dismissed.