Muhammad Ishfaq etc. vs Adj etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

Writ Petition No. 9643 of 2018

Muhammad Ishfaq etc vs ADJ etc

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 26.06.2018 Mr. Tariq Muhammad Iqbal Chaudhry, Advocate for petitioners.

Through this constitutional petition, the petitioners have called in question the order dated 24.11.2017 passed by the Civil Judge, D.G. Khan whereby the court dismissed the application filed by the petitioners for submission of list of witnesses and have also called in question the order dated 15.05.2018 passed by Addl:

District Judge, D.G. Khan whereby civil revision filed by the petitioner against the afore referred order was also dismissed.

2.The brief facts of the case are that the petitioners filed a suit for possession through pre-emption by claiming therein that the petitioners had superior right of pre-emption and had made the requisite “talabs”/demands therein. The suit was contested by respondent

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No.3(“respondent”). The petitioners produced seven witnesses in his evidence and to contest the same respondent No.3 appeared himself as witness in the case and also produced documentary evidence. During pendency of the proceedings, it came to the notice of the petitioners that some material witnesses had not been called in their evidence. Consequently, the petitioners filed an application for summoning of Registry Clerk of GPO, DG Khan, Village Postman who are official employees and Ghulam Sarwar, Clerk of the Advocate on the ground that they were necessary and important witnesses of the case. The said application was dismissed by the learned trial court on 24.11.2017. The petitioners filed a civil revision against the said order which was also dismissed by the Addl: District Judge, D.G. Khan vide order dated 15.05.2018. Both the aforesaid orders are under challenge through this constitutional petition.

3.Learned counsel for the petitioners has argued that it is a right of every individual to have the matter decided in accordance with law through fair trial, therefore, the application filed by the petitioners be allowed and they be permitted to summon the required witnesses.

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Moreover, two witnesses are official witnesses and required to produce official record.

4.Heard. Record perused.

5.The petitioners filed a suit for possession though pre-emption, relating to suit property, which was contested by the respondent. Issues were framed on 01.07.2016. The parties were required to file list of witnesses within seven days from the same in terms of Order XVI rule 1 of the Code of Civil Procedure (“CPC”). However, the petitioners did not file the said list within time. The parties have led their respective evidence, wherein the petitioners produced seven witnesses and respondent himself appeared as his own witness. Subsequently, it transpired to the petitioners that they had not called some material witnesses in their evidence. The petitioners filed an application for summoning the said witnesses. A party who has not cited a witness in the list of witnesses submitted by it, cannot summon the said witness through the process of court without permission of the court, which could be granted subject to showing Good cause in terms of Order XVI rule 1(2) CPC. The only cause mentioned by the petitioners in the application for summoning the said

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witness is that inadvertently the list of witnesses could not be earlier filed. It is claimed that the Registry Clerk, Village Postman and Clerk of the Advocate may be allowed to be summoned through the process of the court. However, inadvertence has never been treated as a good cause for allowing a party to produce the list of witnesses after the time fixed for the same had expired and the petitioners were required to show some good cause for summoning the said witnesses through process of court.

Reliance is placed on Mst. Musarrat Bibi and 2 others vs. Tariq Mahmood Tariq (1999 SCMR 799), wherein the list of witnesses was not filed due to ignorance of law by the party and it was claimed that two of the witnesses were females. The Hon’ble Supreme Court of Pakistan in such situation held that ignorance of law could not be treated as a sufficient ground not to furnish list of witnesses in time.

In the case of Muhammad Anwar and others vs. Mst.

Ilyas Begum and others (PLD 2013 SC 255), the defendants contended that witnesses sought to be summoned were officials, who were supposed to bring record alongwith them, which was quite germane for the

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purpose of resolving the controversy between the parties, the Honourable Supreme Court of Pakistan declined to accede to the said request for summoning such witnesses by observing that admittedly names of witnesses sought to be summoned by the defendants were not present in the list of witnessed required to be filed in terms of Order XVI rule 1 CPC., rather counsel for defendants was not even sure whether such a list had been filed at all within the stipulated time of seven days of framing of issues by the trial court and good cause had not been shown to summon the same. The relevant portion of the said judgment is produced below:

“Coming to the second limb of sub-Rule (2), as noted earlier, not only that the litigant party has to show a good cause for having not either furnished the list of witnesses within time or the omission of the name of such witnesses in the list, but a condition has been imposed and a rider has been placed by law on the exercise, of jurisdiction of the Court and the discretion in that behalf; in other words the Court is not free to grant such permission as per its own whim and caprice and in an arbitrary manner, rather it shall record the reasons for such a permission (emphasis supplied). The condition of recording the reasons obviously is a check on the unbridled and absolute discretion of the Court, which (reasons) should have nexus to

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the good cause as set out by the delinquent party. At the cost of repetition, it may be mentioned that the Court is not vested with an unrestricted authority and discretion to pass any whimsical direction and capricious order it feels like, but obviously the order allowing the permission has to conform to “those reasons which are justifiable in the eyes of law”, which reflects the judicial application of mind by the Court and the disposal of the request in a judicial manner. It may be pertinent to state here that while disallowing the application of the party for summoning the witnesses, the Court is also required to record its reasons.”

Keeping in view the principles laid down by the afore referred judgment, it is observed that merely by mentioning that the list had inadvertently not been filed earlier and the evidence of official witness would be essential for the just decision of the case, without explaining why the name of the said witness had not been included earlier in the list or why the list had not been filed earlier, no sufficient ground existed in favour of the petitioners to allow their application. Even otherwise the application for summoning the witnesses has been filed after one year and four months of framing of the issues and that too after closure of evidence of both the parties without giving any justification. Consequently, the

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courts below were justified to dismiss the application filed by the petitioners. No ground to interfere in the constitutional jurisdiction of this Court in the concurrent findings of the courts below has been established as there is no illegality or jurisdictional defect in the said orders.

6.For what has been discussed above, this constitutional petition being devoid of any merit is dismissed.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Naveed *