Nazir Khan & others Vs Noor Shah

IN THE PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

Civil Revision No.974-P/2024

Nazir Khan & others Vs Noor Shah

Date of hearing: 09.02.2026 Petitioner (s) by: Mr. Amir Javed, Advocate. Respondent (s) by: Mr. Inayat Ullah Khan, Advocate. Research assistance: Riaz Aslam Daavi, SRO PHCP

JUDGMENT

FARAH JAMSHED, J:- Impugned herein is order dated 29.10.2024, whereby, two separate applications filed by the parties to the suit under discussion of this revision petition, for summoning the witnesses, were dismissed by the learned trial court of Additional District Judge-VI, Peshawar.

2.The brief facts and controversy emerging from the civil revision are that the respondent/plaintiff, Noor Shah, instituted a suit before the learned Civil Court, Peshawar for recovery of Rs.150, million and rendition of accounts against the petitioners/defendants Nazir Khan and another. The case of the plaintiff was that he was working as a subcontractor of the defendants for supply

of fuel to NATO forces in Afghanistan through ten oil tankers, out of which eight tankers were allegedly destroyed during subversive activities while the remaining vehicles and certain amounts, including insurance proceeds and payments from supply bills, were allegedly withheld by the defendants, thereby giving rise to the dispute between the parties. The defendants contested the claim through written statement and the trial proceeded; however, during the stage of defence evidence the petitioners moved an application seeking permission to record the statements of two witnesses, namely Aman Ullah and Muhammad Amin, whose names were already mentioned in the list of witnesses at serial No.06 and 12, contending that earlier their whereabouts were not known. However, now they are present before the court and have filed their respective affidavits hence, requested the court that these witnesses may be allowed to be examined as DWs. The learned Additional District Judge- VI, Peshawar, vide order dated 29.10.2024 dismissed the said application, thereby declining permission to record their statements. Feeling aggrieved of the impugned order, the petitioners have invoked the revisional jurisdiction of this Court, contending that the refusal to

allow production of the said witnesses is illegal, arbitrary and contrary to the principles of fair trial and proper adjudication of the controversy, as the statements of the said witnesses are necessary for just decision of the case.

3.The learned counsel for the respondent, while opposing the instant civil revision, contended that the impugned order suffers from no illegality or jurisdictional defect so as to warrant interference by this Court in exercise of its revisional jurisdiction. He argued that the petitioners were afforded ample and sufficient opportunities by the learned trial Court to produce his entire evidence and examine all witnesses in support of his case, yet he failed to do so. It was further submitted that the petitioners, of their own volition, closed their evidence. Having consciously closed their evidence, the petitioners cannot now be allowed to reopen the same merely to fill up lacunae in their case under the pretext that the witnesses were previously unavailable. Learned counsel further submitted that although the Court is vested with discretionary powers to summon, recall, or examine a witness where the ends of justice so require, such powers are not to be exercised for the benefit of a negligent litigant who, despite repeated opportunities,

failed to exercise due diligence. The petitioner’s request is not bona fide but is only an attempt to protract the proceedings and delay the final adjudication of the suit, which has already consumed considerable time. He maintained that allowing such a request at this belated stage would seriously prejudice the respondent and defeat the principle of expeditious disposal of cases.

4.Arguments heard and record perused.

5.The controversy requiring determination in the present case is whether the Court has the jurisdiction to reopen the evidence of a party after the same has been closed and, if so, the circumstances in which such jurisdiction may lawfully and properly be exercised.

6.For the resolution of above issue, it is necessary, at the outset, to examine the governing legal framework, namely the Code of Civil Procedure, 1908 (“CPC”), which regulates the procedure for production of evidence and delineates the powers of the Court in that behalf. The scheme of the CPC provides a structured procedure for the institution, trial, and disposal of civil suits. A civil suit is instituted by presentation of a plaint under Section 26 read with Order IV Rule 1 CPC, containing the material facts constituting the cause of action in terms of Order VI

and Order VII CPC. Upon admission of the plaint, summons are issued to the defendant under Section 27 and Order V CPC, whereupon the defendant enters appearance and files a written statement in accordance with Order VIII CPC. After completion of pleadings, the Court frames issues under Order XIV CPC on the disputed questions of fact and law. The parties are then required to produce their documentary evidence under Order XIII CPC and lead oral evidence through examination of witnesses in terms of Order XVIII CPC, including examination-in-chief, cross-examination, and re-examination. Upon conclusion of evidence, the parties advance their final arguments as contemplated by Order XVIII Rule 2 CPC. Thereafter, the Court pronounces its judgment under Order XX Rule 1 CPC, followed by the preparation and drawing of the decree in terms of Section 33 and Order XX CPC. This procedural framework ensures that disputes are adjudicated after affording the parties full opportunity to present their pleadings, evidence, and arguments before the Court.

7.Before proceeding further, it is necessary to examine the relevant provision of law governing the matter. In this regard, Order XVI Rule 1 of the Code of

Civil Procedure, 1908 (CPC), lays down the procedure for summoning witnesses, which reads as follows:

1.Summons to attend to give evidence or produce documents. – (1) The Court shall, immediately after framing of the issues, require the parties to file a list of witnesses in the Court within such period, not later than seven days, as the Court may fix.

(2)A party shall not be permitted to call witnesses other than those contained in the list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list and the Court shall record reasons for granting permission.

(3)On application to the Court or such officer as it appoints in this behalf, the parties may obtain summons for persons whose attendance is required in Court: Provided that no summons shall be issued for service on a person under rule 8 unless an application in that behalf is made not later than fourteen days prior to the date fixed for the hearing of the suit and the necessary expenses for the summoning of such person are deposited.

8.The substance of the above provision is that a party is required to file its list of witnesses within the time fixed by the Court and, as a general rule, may produce only those witnesses whose names are included therein.

Nevertheless, an omitted witness may later be allowed to be produced with the permission of the Court, provided that good cause for the omission is shown and reasons are recorded by the Court. The provision, therefore, clearly

indicates that the controlling authority in this regard is the Court, which has the jurisdiction to permit the production of a witness whose name was not included in the list of witnesses. This discretion, however, is not absolute or unregulated; it is expressly linked to, and dependent upon, the existence of good cause. According to Black’s Law Dictionary,1 good cause means a legally sufficient reason, or a burden placed upon a litigant, usually by court rule or order, to show why a request should be granted or an act excused.

9.Similarly, Rule 7 and 14 of Order XVI CPC, provides that:

7.Power to require persons present in Court to give evidence or produce document. – Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power.

14.Court may of its own accord summon as witnesses strangers to suit.– Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or

Black’s Law Dictionary (Eight Edition) (Page 235)

require him to produce such document.

(emphasis provided)

The ibid provisions clearly demonstrate that, where the Court considers it necessary for the just decision of the case, it may, of its own motion, summon any person as a witness to give evidence or produce a document. The object of conferring such power is to enable the Court to obtain proper assistance so that the lis2 may be decided fairly and effectively.

10.The question that now arises for determination is whether, after having closed their evidence by abandoning their witnesses, the petitioners can again seek permission to produce such witnesses. In this context, the matter may be examined in the light of the principles of estoppel and waiver. Estoppel, in essence, operates as a bar which prevents a person from asserting a claim or right that contradicts what has previously been stated, done, or legally established as true. Waiver, on the other hand, denotes the voluntary relinquishment or abandonment, either express or implied, of a legal right or advantage. According to Black Law Dictionary, the party alleged to have waived a right must possess both A piece of litigation; a controversy or dispute.

knowledge of the existing right and the intention of foregoing it.3 Waiver cannot be inferred unless the party concerned had knowledge of the existing right and intentionally chose to forgo it. In the present case, the closing of evidence does not appear to constitute such voluntary abandonment. The petitioners have explained that their evidence was closed when their witnesses could not be traced and the trial court required them to conclude their side. It is their case that, once the whereabouts of those witnesses became known, they promptly approached the Court for permission to produce them. In these circumstances, the bar of estoppel or waiver cannot be applied mechanically, for the earlier closure of evidence was not shown to be a conscious and deliberate surrender of the right to examine those witnesses, but was attributable to the non-availability of the witnesses at the relevant time and the direction of the Court to conclude the evidence. Such indulgence, no doubt, cannot be extended as a matter of course in every case; however, the present matter stands on its own peculiar footing. Firstly, the list of witnesses had been submitted in January 2014, whereas the opportunity to record the evidence of the Black’s Law Dictionary (eight Edition) (Page 1611)

petitioners arose only in 2023, after an interval of nearly nine years. In such a prolonged span of time, it is not unnatural that the witnesses may have shifted from their earlier addresses or otherwise become untraceable for some period. Secondly, the witnesses were not available at the relevant time. Thirdly, as the dispute involves substantial financial stakes, the examination of the said witnesses would materially assist the Court in arriving at a just and proper conclusion. Therefore, keeping in view the peculiar facts and circumstances of the case, and bearing in mind the ample powers of the Court under the Code of Civil Procedure to summon and examine witnesses in the interest of justice, even where such witnesses had earlier been abandoned, permission may justly be granted for their production so that the controversy may be decided on its true merits rather than on technical considerations.

11.In the case of Faryal Arif Latif,4 the Supreme court held in the following words:

“The function of the court is to administer substantial justice between the parties after providing ample opportunity for hearing which is a significant component and virtue of a fair trial, whereas the procedure serves as a machinery with the object of facilitating and not obstructing the administration of justice. Therefore, it ought to be construed liberally and, as far as possible, Faryal Arif Latif Vs Arif Latif (2025 SCMR 395).

technical objections should not be allowed to defeat substantial justice. This Court, in the case of Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382), held that the proper place of procedure in any system of administration of justice is to help and not to thwart the grant of rights to people. All technicalities have to be avoided unless it is essential to comply with them on grounds of public policy. The English system of administration of justice, on which our own is based, may be, to a certain extent, technical. However, we are not to take from that system its defects. Any system which, by giving effect to the form and not to the substance, defeats substantive rights, is defective to that extent.”

12.It is a cardinal principle of the administration of

justice that a lis must be decided on its merits rather than on technical grounds, for the law consistently favors

adjudication on merits.5 The law, as it has developed in

our jurisdiction, leans in favour of decisions on merits

rather than permitting rights to be sacrificed at the altar of procedural technicalities and the rigours of the rules. At the same time, the courts have remained cautious in

refusing relief to those who have been indolent in

pursuing their rights or who have abused the process of

law by delaying legal proceedings. 6 Thus, although

Sarfaraz Khan Vs PDA (2025 CLC 316 Pesh), SDO, PESCO Peshawar Vs Khwazan Zad (2023 PLD SC 174), Zohra Bibi Vs Haji Sultan Mahmood (2018 SCMR 762), Mehmood Khalid Khan Vs Muhammad Iqbal Khan (2016 CLC 1829 Pesh), Syed Tahir Hussain Mehmoodi Vs Agha Syed Liaqat Ali (2014 SCMR 637), Muhammad Saad Ali Vs Mst Maryam Khan (2014 CLC 715 Pesh), Haji Lal Shah Vs Mst Nooran (2012 CLC 1503 Pesh), Zahid Jamil Vs Saeeda Bano (2010 MLD 1010 Pesh), Asim Ullah Khan Vs Ihsan Ullah Khan (2004 PLD Pesh 38), Ch.Lal Din Vs Tehsildar (2003 SCMR 1963), Sajawal Khan Vs Wali Muhammad (2002 SCMR 134), Friends Vegetable Ghee Mills Vs Privatization Commission (2000 CLC 1955 Pesh), Zahoor Ahmed Vs Mehra (1999 SCMR 105), Salima Begum Vs Mst Saradan Bibi (1995 PLD SC 406), Musa Khan Vs Abdul Haque (1993 SCMR 1304), Muhammad Yousaf Vs Khan Bahadur (1992 SCMR 2334), Muhammad Shafi Vs Firm Haji Fazal Ilahi (PLD 1964 (w.p) Pesh 182.

Gohar Ayub Vs Muhammad Shafiq (2015 YLR 163 Pesh).

technicalities should be avoided in the larger interest of justice, such discretion is not to be exercised as a rule of thumb; rather, it must depend upon the facts and circumstances of each case, for granting absolute immunity or impunity from procedural requirements would render them redundant and ineffective. It is equally settled that, where sufficient cause is shown for the omission, a party may be permitted to produce even a witness whose name was not included in the list of witnesses. Likewise, under the Code of Civil Procedure, 1908, a party is not absolutely debarred, merely because it has closed its evidence, from subsequently seeking leave to produce a witness; nor is there any absolute legal bar to the later production of a witness who had earlier been abandoned or given up. However, such permission cannot be claimed as of right; it rests within the sound discretion of the Court, to be exercised cautiously and judiciously, and only where good cause is shown, keeping in view the peculiar facts and circumstances of the case.

In the present case, the petitioners’ witnesses had already been named in the list of witnesses, but could not be examined earlier because their whereabouts were not known at the relevant time. This explanation cannot be

said to be implausible, as already explained in earlier part of this judgment, the petitioners had furnished the list of witnesses in January 2014, whereas their turn to produce evidence arose only in 2023, after a lapse of approximately nine years. In such circumstances, it is but natural that the witnesses may have shifted from the addresses disclosed in the list of witnesses submitted in January 2014.

13.Before parting with this judgment, it is observed with concern that the suit was instituted in the year 2013 and still remains pending adjudication. The prolonged pendency of the suit appears to have resulted from a combination of procedural and institutional factors. A substantial portion of the delay, mainly attributable to issues relating to evidence, witnesses, and process, which constituted the single largest factor impeding the progress of the case. The conduct of the parties and their counsel also materially contributed to the delay, more particularly due to plaintiff side and to some extent by the defendant side as well. Court related factors, and strikes by lawyers also are contributory factors to some extent. Overall, this breakdown indicates that the principal cause of delay lay in the recurring difficulties surrounding the production of

evidence and the completion of procedural formalities.

The superior courts have, on numerous occasions, addressed the issue of delay in civil proceedings and the tendency of granting mechanical adjournments. In the case of Moon Enterprises, 7 the Supreme Court held as follows:

4.We have heard the learned counsel and perused the record. It is unfortunate that the prevailing pattern in the conduct of litigation in the Lower Courts of Pakistan is heavily permeated with adjournments which stretch, what would otherwise be a quick trial, into a lengthy, expensive time-consuming and frustrating process both for the litigant and the judicial system. While some adjournments are the consequences of force majeure, most are not. To cater for the later and to discourage misuse, the C.P.C. through Order XVII, Rule 3 has provided the Court with a course of action that checks such abuse. We now advert to Order XVII, Rule 3, C.P.C., which is reproduced below for ease of reference: -

3.Court may proceed notwithstanding either party fails to produce evidence, etc: Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding each default, proceed to decide the suit forthwith.

5.This court has through a plethora of judgments, settled the law on the aforementioned provision. In Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (PLD 1971 SC 434) this court held that:

"It will be seen that this rule applies to a case where time has been granted to a party at his instance, to produce evidence, or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted."

In the case of Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others (PLD 2003 SC 180) it was held that failure to produce evidence despite a last opportunity being granted would attract Order XVII, Rule 3, C.P.C. More recently, it was held in the case of Rana Moon Enterprises CNG Station Vs SUI Northern Gas Pipelines (2020 SCMR 300).

Tanveer Khan v. Naseer-Ud-Din and others (2015 SCMR 1401) that:

2....Be that as it may, once the case is fixed by the Court for recording the evidence of the party, it is the direction of the court to do the needful, and the party has the obligation to adduce evidence without there being any fresh direction by the court, however, where the party makes a request for adjourning the matter to a further date(s) for the purposes of adducing evidence and if it fails to do so, for such date(s), the provisions of Order XVII, Rule 3, C.P.C. can attract, especially in the circumstances when adequate opportunities on the request of the party has been availed and caution is also issued on one of such a date(s), as being the last opportunity(ies).

6.A bare reading of Order XVII, Rule 3, C.P.C. and case law cited above clearly shows that for Order XVII, Rule 3, C.P.C. to apply and the right of a party to produce evidence to be closed, the following conditions must have been met:

i. at the request of a party to the suit for the purpose of adducing evidence, time must have been granted with a specific warning that said opportunity will be the last and failure to adduce evidence would lead to closure of the right to produce evidence; and ii. the same party on the date which was fixed as last opportunity fails to produce its evidence.

In our view it is important for the purpose of maintaining the confidence of the litigants in the court systems and the presiding officers that where last opportunity to produce evidence is granted and the party has been warned of the consequences, the court must enforce its order unfailingly and unscrupulously without exception. Such order would in our opinion not only put the system back on track and reaffirm the majesty of the law but also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reason. Where the Court has passed an order granting the last opportunity, it has not only passed a judicial order but also made a promise to the parties to the lis that no further adjournments will be granted for any reason. The Court must enforce its order and honour its promise. There is absolutely no room or choice to do anything else. The order to close the right to produce evidence must automatically follow failure to produce evidence despite last opportunity coupled with a warning. The trend of granting (Akhri Mouqa) then (Qatai Akhri Mouqa) and then (Qatai Qatai Akhri Mouqa) make a mockery of the provisions of law and those responsible to interpret and implement it. Such practices must be discontinued, forthwith.

14.The Supreme Court held that frequent and mechanical adjournments are a major cause of delay in civil litigation and must be discouraged. Order XVII Rule 3 CPC empowers the court to proceed with the case and close the right to produce evidence when a party, despite being granted time and warned that it is the last opportunity, fails to produce evidence or witnesses.

15.It is well settled that revisional jurisdiction may be invoked where the subordinate court has exercised a jurisdiction not vested in it by law, has failed to exercise jurisdiction so vested, or has acted in the exercise of such jurisdiction illegally or with material irregularity, including by misreading or non-reading the evidence on record. In the present case, considering the peculiar facts and circumstances, the good cause shown by the petitioner, and the demands of justice and fair play, sufficient ground exists for this Court to exercise its revisional jurisdiction, as the subordinate court failed to exercise the jurisdiction vested in it. Consequently, the instant revision petition is allowed. The impugned order is set-aside and petitioners are allowed to produce and examine their witnesses mentioned above without

seeking any adjournment on the date fixed by the learned trial court.

16.Parties are directed to appear before the learned trial court on 07.03.2026.

Announced:

Usama, JSS

JUDGE

(SB)Hon’ble Ms. Justice Farah Jamshed