HANIFAN KHATOON Versus SECOND ADDITIONAL DISTRICT JUDGE, KHANPUR

1. TANZIL‑UR‑REHMAN, J‑ ‑This is a Constitutional petition challenging the order dated 9‑6‑1987 passed by the learned Senior Civil Judge, Gambat rejecting the application moved by the petitioner under Order XVI, Rule 1(2), C.P.C. and subsequent order dated 6‑4‑1988 passed by the learned IInd Additional District Judge, Khairpur dismissing the revision. It seems advantageous to reproduce below Rule 1 of Order XVI, C.P.C. It reads:‑

2. "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 list of witnesses whom they propose to call either to give 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."

3. The provision of law, as quoted above, provides that in case the application is granted by the Court, it should record its reasons for granting the same. It implies that such an application should not be taken lightly and is not to be decided as a matter of course. Discretion in granting the application is to be exercised judiciously. The only condition on which the discretion may be exercised by the Court is that a sufficient cause should be disclosed in the application by the party invoking the Courts discretionary exercise of power. It is true, as submitted by the counsel, that mere omission on the part of the party to submit a list of witnesses before expiry of seven days of .the settlement of issues, will not normally deprive the party from calling the witnesses as it would amount on the part of the j Court to shut out the evidence of such a party merely because a step in proceedings has been delayed. In our view, ordinarily the Court should exercise its discretion for benefit of a vigilant litigating party unless it is shown that the party at default has been negligent and has no reasonable excuse to offer. In other words, a party failing to present in Court a list of witnesses within seven days after the settlement of issues may be permitted to call witnesses provided such failing party is able to show good cause for presenting the said list. For this view, we are fortified by the observations of the Hon'ble Supreme Court in the case of Australasia. Bank Ltd. v. Messrs Mangora Textile Industries, Swat and others 1981 S C M R 150 that "if a reasonable explanation is given and no prejudice is caused to the opposite party in its defence and the Court is not unduly inconvenienced the party's evidence should not be shut out for its failure to file the list within 7 days of the framing of the issues".

4. In the present case it is noticed that the suit was filed in the year 1984 and was at the stage of final hearing since December, 1985, the petitioners attorney was examined on 22‑6‑1986 and thereafter the matter was got adjourned by the petitioners from time to time on one pretext or the other, and it was only on or about 30th May, 1987 that the application under Order XVI, Rule 1(2), C.P.C. was presented before the learned Civil Judge. We have gone through the application moved by the petitioners before the learned Senior Civil Judge, Gambat and find that the said application is absolutely silent as to the reason for not filing the list of witnesses as required under sub‑rule (1) of Rule 1 of Order XVI, C.P.C. The application does not have a word about 'the cause' of late submission of the application, what to say of "sufficient cause". The petitioners should thank themselves for not giving any reason whatsoever for the exercise of dissection by the trial Court as required under the said provision of law.

5. Mr. Azizur Rehman Memon, learned counsel for the petitioners has placed his reliance on the following cases, namely, (1) Imtiaz Ahmad v. Ghulam Ali and 2 others P L D 1963 SC 382, (2) Khushi Mohammad v. Adul Shakoor and 2 others P L D 1980 BJ 41 and (3) Rana Taleh Mohammad Khan and others v. Additional District Judge, Sheikhupura and 12 others P L D 1979 Lah. 145.

6. In the first case, reliance is placed by the counsel on the following observation of the Honourable Supreme Court appearing at 400.

7. "Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person that is his."

8. With respect, it may be stated that the above observation is of a general nature. We cannot lose sight of the fact that the people of Pakistan have been crying for speedy justice. As a result thereof, an amendment was introduced by Law Reforms Ordinance, 1972 in Order XVI, Rule 1, C.P.C. which made it incumbent on the parties to present in Court a list of witnesses within seven days of the settlement of issues and, therefore, requiring the parties to present list of witnesses within seven days after the settlement of issues, isl not a question of mere technicality, as submitted by the learned counsel. It is a provision which has been made in aid of rendering speedy justice to the parties in litigation. Moreover, the purpose for presenting a list of witnesses after the settlement of issues is t enable the other side to know what kind of evidence the other part intends to summon and produce before the final hearing takes place, Therefore, the above observation of the Hon'ble Supreme Court i. not at all relevant to the provision of law and facts of the cast before us.

9. The second case decided by a Division Bench of the Lahore High Court is quite irrelevant. The provision of Order XVI, Rule 1 has undoubtedly been discussed in the said case and it has been observed by learned Judges that "the Court while allowing the application under sub‑rule (2) of Rule 1 of Order XVI, C.P.C. is to record its reason given by defaulting party for late submission as a good cause. There can be no cavil on it. But this ruling might have been relevant had the lower Court in the case before had granted the application without recording reasons for it. The case before us is just the reverse.

10. The third case decided by a learned Single Judge of Lahore High Court does not also help the case of the petitioners, rather it goes against them. In the said judgment it has been observed that provision of Order XVI, Rule 1 purport to bind down a party to shorten the litigation and to avoid afterthoughts. It is further observed by the learned Judge that Writ Jurisdiction is not to be exercised where the Court below did not act illegally or without lawful authority.

11. The learned counsel for the petitioners lastly submitted before us that the necessity of summoning witnesses through Court arose because of a letter of Mukhtiarkar regarding false and fabricated entries of mutation in the record of rights. This submission of the counsel, too, is of no help at all to the petitioners as the letter produced alongwith the petition is dated 3rd October, 1978 about six years before filing of the suit.

12. The witnesses, as such named in the list of the witnesses required to be filed within 7 days under Order XVI, Rule 1, C.P.C.ID cannot now be summoned through Court, as requested by the petitioners. For this, reliance is also placed by this Court on ‑a Full Bench decision of the Lahore High Court in Ghulam Murtaza v. Mohammad Ilyas P L D 1980 Lah. 495.

13. For the reasons discussed above, the impugned orders of the learned Senior Civil Judge as well as the Additional District Judge do not suffer from any infirmity in law. Both the Courts below have acted within their limits of jurisdiction vested in them, in refusing I the application. The Constitutional Petition is, therefore, dismissed in limine.

14. Before parting with the case, we may observe that there is a growing tendency of filing Constitutional Petitions against the orders, judgments and decrees passed by the Civil Courts who generally, have the jurisdiction to pass such orders, judgments and decrees. Such tendency, to our great enxiety, has also been responsible ‑a one of the causes for unnecessary delays in justice in the disposal o other cases.

15. M . Y . H . / H‑104 / K Petition dismissed.