NAEEM ENGINEERING CORPORATION Versus GOVERNMENT OF THE PUNJAB

ALI HUSSAIN QAZILBASH, J .‑‑These three appeals by leave have arisen from a consolidated order of a learned Single Judge of the Lahore High Court, dated 4‑10‑1978, and are being disposed of by this judgment.

2. M/s. Naeem Engineering Corporation (Civil Appeal No.212 of 1985), M/s. Khurshid Trading Corporation (Civil Appeal No.21$ of 1985) and Chaudhari Brothers and Co. (Civil Appeal No.214 of 1985) had sued the Government of Punjab for recovery of a sum of Rs.29,740.00, Rs.67,024.00 and Rs.68,307.00, respectively. The suits were contested and as a result of the pleadings issues were framed on 2‑1‑1974 and the lists of witnesses were submitted on 8‑3‑1974. On applications by the appellants, only one witness out of the lists relating to the Anti‑Corruption Department was allowed to be summoned. This was done on several occasions but the hearing could not take place for variety of reasons. Or 23‑6‑1975 it was made the duty of the appellants to get the summons served and produce the evidence. The case came up for hearing on 29‑11‑1975, 29‑1‑1976 and then on 22‑5‑1976 when an order directing the appellants to produce evidence at their own responsibility was repeated. On the next date, i.e., 3‑7‑1976, the Presiding Officer was on leave and it appears that the evidence was present. The hearing was, however, adjourned to 25‑9‑1976 but this date was declared to be a public holiday and the case was adjourned to 4‑12‑1976. Since the witness was a Government servant, the appellants submitted applications can 4‑12‑1976 praying that the responsibility to produce` the said witness should not be placed on the appellants and the witness be summoned through Court, for which process fee was deposited. The case was then adjourned to 7‑1‑1977 when on this date the learned Civil Judge passed the following order:

Three revisions were filed by the appellants but the same were dismissed through the impugned order.

3. Leave was granted to consider the propriety of the orders of the Courts below.

4. The learned counsel for the parties heard. Ch. Khurshid Ahmad, the learned counsel for the appellants, contended that late filing of lists of witnesses notwithstanding, the Court itself had been summoning the witnesses all along and a request made to the Court to summon them again could not be brushed aside on the ground that the lists of witnesses were submitted late. It was also submitted that keeping in view the identity of the witnesses, mostly the departmental officers, who were required to be summoned, the passing of the responsibility of producing them entirely to the appellants was unjustified and the Court should have lent its assistance in getting the process issued and served. In support of the above, a large number of authorities were cited at the bar. On the other hand, Mr. M. Nawaz Abbasi, Assistant Advocate‑General, supported the orders of the Courts below and also cited certain authorities.

5. The questions in these appeals to be considered are whether in the facts and circumstances of the case, the appellants could be non‑suited for filing list of witnesses beyond the period prescribed under sub‑rule (1) of rule 1, Order XVI, C.P.C. and the responsibility of producing official witnesses could be placed on the appellants.

6. Sub‑rule (1) of rule 1, Order XVI, C.P.C., reads:

"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."

As the record stands, there stands no difficulty in our way in answering the above questions in the negative. Admittedly issues in these appeals were framed on 2‑1‑1974 and under the law cited above, the appellants were required to submit their lists of witnesses within seven days, i.e. by 9‑1‑1974, but they did so on 8‑3‑1974, that is, after more than two months, which obviously was against the provision of sub‑rule (1) of rule 1, Order XVI, C.P.C. But then the appellants could not be non‑suited firstly because this violation was noted for the first time by the Civil Judge after a period of three years and also that no objection whatsoever, had been raised during all this time by the respondents either, and, secondly, because the Court had been acting upon these lists inasmuch as witnesses were summoned on a number of occasions and again not objected to by the respondents. The fault in raising no objection as to the violation of the provision of sub‑rule (1) of rule 1 of Order XVI, C.P.C. at the earliest squarely lay on the Court and the respondents. Since a party cannot be penalised because of the omission on the part of the Court, the negligence of the other side and also because nothing has been brought on the record that the other party had been prejudiced, the lists so submitted by the appellants had to be acted upon and evidence recorded accordingly.

7. As for the second part of the question formulated above, the same 'has been dealt with by the learned Single Judge in the following manner:

"On this last date (23‑6‑1975) it was made the duty of the petitioners (now appellants) to get the summons served and produce the evidence. Thereafter the case was transferred for administrative reason in some other Court. When it came up for hearing on 29‑11‑1975, it had to be adjourned for the non‑production of evidence to 29‑1‑1976 and the petitioners were directed to pay costs to the other party for this adjournment. On 22‑5‑1976 the order directing the petitioners to produce evidence at their own responsibility was repeated. On the next date, i.e. 3‑7‑1976, the Presiding Officer was on leave. It appears that evidence was present. It was, therefore, directed that they should be served for the next date but no steps were taken by the plaintiffs who merely put in process fee although they should have got bound their witnesses for the next date on 3‑7‑1976. The case was adjourned to several dates again till the 6th of January, l9t7, when the Court found that there was no evidence. On that date the plaintiffs submitted application for effecting service of their witnesses through Court. The case was adjourned to 7‑1‑1977, presumably to consider the application. The learned counsel submitted that the main question which was to be considered on 7‑1‑1977 was whether the plaintiffs' evidence should not be closed on account of the provisions of Order 16, rule 1, C.P. C.

The impugned orders were passed on 7‑1‑1977."

8. This approach, we are afraid, is absolutely erroneous. Admittedly on 3‑7‑1976 the witness was present but since the Presiding Officer was on leave, no hearing could take place. In the absence of the Presiding Officer, therefore, how on earth and through whom the appellants could have got the witness bound down for the next date. In producing the witness on 3‑7‑1976 the appellants have adequately discharged their responsibility. Further, they had also deposited the process fee for the next date and that was only thing they could do. If the witness, who was a government servant, did not attend the Court on the date fixed, it was the duty of the Court to have proceeded against the defaulting witness as provided for under Order XVI, rule 10, C.P. C. This not having been done, the Court under the law could not have dismissed the suit. Thus, the orders of the Civil Judge, dated 7‑1‑1977, and of the High Court, dated 4‑10‑1978, are patently illegal and cannot be sustained. It may further be added that the Courts have wrongly relied on M.H. Sadiq and Co. Lyallpur (Faisalabad) v. Volkart (Pak.) Ltd., Karachi, through their attorney P L D 1976 Lah. 1460 while non-suiting the appellants in that the facts and the point of law involved in the said case were different.

9. As a result the appeals are allowed and the Civil Judge, Lahore, is directed to proceed with the matter accordingly. There is, however, no order as to costs.

M.B.A./N‑67/S ??????????????????????????????????????????????????????????????????????? Appeals allowed.