Mst. MUSARRAT BIBI and 2 others vs TARIQ MAHMOOD TARIQ

ORDER

' MUHAMMAD BASHIR JEHANGIRI, J.---In a civil suit pending in the Court of a learned Civil Judge, Lahore, issues were framed and the case was fixed for recording of the evidence of the parties. The respondent who was plaintiff in the suit closed his evidence. The case was adjourned for the evidence of the petitioner-defendants. On 3-11-1996, it transpired that the petitioner-defendant had not filed list of witnesses within seven days of the framing of the issues as required by Order XVI, rule 1, C.P.C. On the date fixed only petitioner No,1 appeared and on coming to know that no list of witnesses had been filed by her, she opted to close the petitioners' evidence. Thereafter, the petitioners moved an application for permission to examine 15 more witnesses duly listed in the application itself. This application was vehemently contested by the respondent-plaintiff. After hearing the parties, the learned trial Judge dismissed the application vide the order dated 14-3- 1998. The learned trial Court rejected the list.

2. The petitioners went in revision before the Lahore High Court, Lahore wherein it was urged that Mst. Musarrat Bibi petitioner "actually never volunteered the said statement and being an illiterate lady was not aware of implications of the statement"; that keeping in view the rival claims by the parties of huge amount against each other, the matter was being hotly contested, therefore, the learned trial Court was under an obligation to give one opportunity to the petitioners for production of witnesses, in that, the respondent could be compensated with costs.

3. The learned Judge in Chambers of the High Court observed that neither the petitioners have submitted any list of witnesses nor any witness was present on 3-11-1996; that petitioner No,1 who had appeared on behalf of the petitioners, had opted to close the petitioners' side of the evidence and put her signatures on the order-sheet, therefore, she being an educated person, "must have exercised her discretion consciously". The petitioners were, therefore, not entitled to further opportunity to produce evidence when no other witness was present on the said date. The revision petition was thus dismissed in limine, Hence this petition for leave to appeal.

4. Ch. Mushtaq Ahmad Khan, learned Senior Advocate Supreme Court, appearing on behalf of the petitioners, contended, firstly, that it is a well-established legal proposition that full opportunity should be given to lead evidence to the parties to prove their case; that in the suit filed by the respondents, the dispute involved was of purely factual controversy and, therefore, full opportunity ought to have been given to the petitioners, of whom two were ladies, to produce evidence and secondly, that petitioners Nos.1 and 2 were ladies while petitioner No,3 was an old and sick man; that as petitioners Nos.1 and 2 could not understand the intricacies/technicalities of the proceedings before the Civil Court, it could not be said that while relinquishing right to produce evidence an independent advice was available to petitioner No,1 and, therefore, production of additional evidence duly listed in the application should have been allowed in the interest of justice.

5. After going through the record of the case and hearing the learned counsel for the parties, we find that in the circumstances of the case none of the above contentions raised on behalf of the petitioners hold good. In the instant case, the petitioners have omitted to file list of witnesses within the statutory period of seven days of the striking off the issues as is envisaged by Order XVI, rule 1, C.P.C. On the analysis rule 1 (ibid) it is clear that it is mandatory for the parties within seven days after the settlement of issue to present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents. Further, a party is not to be permitted under rule 2 of 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 supported by recording reasons therefor. It is noteworthy that provisions of rule 2 (ibid) are ancillary to the provisions of rule 1 (ibid). Again, the word 'call' occurring in rule 1 of Order XVI, C.P.C. Has fallen for interpretation before a Full Bench of the Lahore High Court in the case of Ghulam Murtaza v.

Muhammad Ilyas and 3 others (PLD 1980 Lahore 495) which was held to mean "call of witnesses under the authority of the Court regarding which the list has to be presented within seven days of the settlement of issues". It was further held that "the parties will have to comply with rule 1 of Order XVI, C.P.C. If they desire to produce their witnesses under the authority of the Court". We approve the construction put on the word 'call' occurring in sub-rule (2) of rule 1 (ibid) in the case of Ghulam Murtaza (ibid), and hold that only those witnesses could be called or produced in evidence regarding which a list has been presented within seven days of the settlement of issues.

6. In Mian Muhammad Hafiz and others v. Aziz Ahmad and others (1980 SCMR 557) the question whether the respondents' delay in filing his application under Order XVI, rule 1 of the C.P.C. Was fit to be condoned or not was held to be a question within discretion of the trial Court. The ratio of this case is that the learned trial Judge therein while allowing such an application had acted in breach of the provisions of Order XVI, rule 1, C.P.C. And, therefore, the order passed was an erroneous exercise of its jurisdiction, although the leave was not granted as the remedy of a writ petition against such an order was held to be totally misconceived.

7. The next proposition raised was that in view of the two petitioners, out of three being females and illiterate, the discretion should have been exercised in their favour and further that the controversies have along been preferred to be resolved on contest and that the course of justice should not be thwarted by sheer technicality is again untenable. The filing of list of witnesses within the statutory period is a sine qua non for the progress of the suit in Court. The provisions of Order XVI, rule 1, C.P.C. Do not fall within the purview of 'sheer technicalities.' It is a provision strictly in accord with the principle of natural justice that a party should have the knowledge of the witnesses of its rival so as to enable it to test the veracity of those witnesses and prepare the cross- examination in advance.

8. We are, therefore, clear in our mind that Order XVI, rule 1, C.P.C. Requires that within seven days after the framing of issues, the parties should present in the Court the list of the witnesses whom they propose to call either to give evidence or to produce documents. The Court can permit examination of only those witnesses, which are mentioned in the list. Nonetheless permission to call a witness not included in the list can be allowed by the Court provided good cause is shown for the omission. In the instant case, the reasons given by the petitioner for not filing the list within time are the ignorance of law and the two of the three petitioners being females. None of these grounds furnish a sufficient cause for petitioners' omission. It is settled principle that ignorance of law cannot be entertained as a goods ground for non-compliance of law. The petitioners' conduct, as is manifest from the narration of facts given above, smacks of negligence.

9. For all these reasons we do not find any merits in this petition and dismiss it with no order as to costs.