AISHA BIBI Versus KANEEZAN BIBI

The plaintiffs appeals, against judgment and decree dated 10‑6‑1978 passed by learned District Judge, Gujranwala dismissing her appeal from judgment and decree dated 18‑1‑1977 passed by Chaudhry Ata‑ul‑Mohsin Lak, Civil Judge, Hafizabad by which he dismissed the suit of the appellant.

2. The only question for determination is that this appeal is Whether the suit of the appellant could be dismissed merely for the reason that she did not submit list of witnesses within seven days from the date of framing of issues as required under Order XVI, Rule 1, C.P.C. Both the Courts below proceeded to dismiss the suit of the appellant on the ground that since no such list was submitted by the appellant within time, therefore, she could not under the law produce any evidence in support of her case to prove the issues and on that score alone the suit was dismissed.

3. I have heard the learned counsel for the parties. It has not been denied by learned counsel for respondents that the law has been settled now that bar under Order XVI, Rule .1, C.P.C. against production of witnesses not included in the list is operative only where a party seeks the production of the said witness through process of Court and otherwise the party could produce witnesses in Court of its own without seeking the aid of the process of Court. In this view of the position of law the judgments and decrees of both the Courts below being illegal are not sustainable. The appeal is accepted. The judgments and decrees of both the Courts below are hereby set aside and the case is remanded to the trial Court to proceed to decide the suit in accordance with law after recording evidence of the parties. There will however, be no order as to costs. The parties are directed to appear before the trial Court on 14‑5‑1988. The office shall transmit the record to the trial Court so that it may be available to the trial Court on the said date.

H.B.T./A‑373/L ‑‑‑‑‑ Case remanded.