Form No: HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Case No: W.P. No.18122 of 2015

Feroz Ahmad Khan Versus Mst. Zubaida Bibi etc.

S. No. of order/ Date of order/ Order with signature of Judge, and that of
Proceeding Proceeding parties or counsel, where necessary.

15.6.2015 Ch. N. Ashraf Advocate.

Through this writ petition, Feroz Ahmad Khan, the

petitioner has assailed the validity of the order dated

7.4.2014 and the judgment dated 24.9.2014 passed by

the learned Civil Judge, Ferozwala and an Additional

District Judge, Ferozwala, respectively, whereby an

application moved by the petitioner under Order XVI CPC,

seeking to proceed against Mst. Zubaida Bibi and Mst.

Surriaya Bibi, respondents/defendants was turned down

by the learned trial Court and the revision petition directed

thereagainst was also dismissed.

2. Leaving aside the unnecessary details, the case of

the petitioner is that he instituted a suit for declaration,

cancellation of documents and possession as well as

perpetual injunction. The aforementioned ladies entered

appearance and filed written statement, controverting the

stance of the petitioner/plaintiff. As a result, the learned

W.P.No.18122-2015 2

trial Court framed issues on 22.10.2010. By the very

same order, the parties to the suit were directed to file

lists of their respective witnesses within 07 days. It so

happened that the petitioner complied with the aforesaid

order, but for one reason or another, the defendants did

not furnish the requisite list. Be that as it may, the

petitioner concluded his evidence, whereafter the

defendants were called upon to refute the case set up by

the petitioner. Before the defendants could produce

witnesses in support of their case, the petitioner filed an

application under Order XVI CPC, praying therein that

since the defendants had not filed the list of witnesses in

the wake of the order dated 22.10.2010, they were to be

“punished and dealt with severely”.

3. The learned trial Court seized of the suit dismissed

the application of the petitioner vide order dated 7.4.2014.

Instead of taking it lying down, the petitioner agitated the

matter before the learned revisional Court calling for its

interference under section 115 CPC. Again, he failed to

persuade the learned Additional District Judge,

Ferozwala, District Sheikhupura to take a different view.

Consequently, his revision petition was dismissed vide

order dated 24.9.2014.

W.P.No.18122-2015 3

4. The learned counsel for the petitioner has reiterated

the contentions raised by him in the application moved

under Order XVI CPC before the learned trial Court. He

has also placed reliance on a judgment of the Hon’ble

Supreme Court of Pakistan reported as “Muhammad

Anwar and others v. Mst. Ilyas Begum and

others”(NLR 2013 Civil 247). In his estimation, it was

observed by the apex Court that unless a party furnishes

a list of witnesses within 07 days of the framing of the

issues, it would stand debarred from examining any

witness. It is further argued by him that since the

defendants failed to comply with the order dated

22.10.2010 passed by the learned trial Court requiring

them to submit a list of witnesses within 07 days, they

were guilty of committing contempt of Court and as such

were to be punished under the Contempt of Courts

Ordinance, 2003.

5. I have heard the learned counsel for the petitioner

at length and perused the record annexed to the writ

petition with his assistance.

6. There is no provision in the Civil Procedure Code

under which a party who fails to furnish a list of witnesses

within 07 days of the framing of the issues may be

punished or dealt with sternly. The reliance of the learned

W.P.No.18122-2015 4

counsel for the petitioner on the judgment of the Hon’ble

Supreme Court of Pakistan reported as “Muhammad

Anwar and others v. Mst. Ilyas Begum and others”

(NLR 2013 Civil 247) = (PLD 2013 S.C. 255) is

misconceived. There is not even a remote reference

made therein that a party having failed to comply with the

provisions of Order XVI, Rule 1 CPC would be thrown out

of the arena or its defense would be struck off or it would

be punished under the Contempt of Courts Ordinance,

2003. Furthermore, it is for the party concerned to decide

as to how it would like to proceed within the framework of

law to prove its case and to refute the case of the other

party. In the instant case, the private

respondents/defendants had not made any move to

summon any witness through the process of Court,

obviating the need for submitting a list for witnesses.

True, they could not be allowed to call and produce an

official witness or even a private witness for that matter,

without the provision for the list of witnesses, as has been

held authoritatively by the Hon’ble Supreme Court of

Pakistan in the case of Muhammad Anwar (supra). The

law laid down therein is not to be stretched to the extent

of debarring the parties from examining any witness they

intend to produce on their own, without the help and

process of the Court. In point of fact, this was so held by a

W.P.No.18122-2015 5

Full Bench of this Court in the case reported as “Ghulam

Murtaz v. Muhammad Ilyas and 3 others”(PLD 1980

Lahore 495). It would be advantageous to reproduce two

paragraphs from this illuminating judgment, which read as

under:-

“8. The words `produce' and `call' are not

at all synonymous. Word `produce' according

to note 1 of the Oxford English Dictionary,

Volume VIII, has been described to mean "to

bring forward, bring forth or out ; to bring into

view, to present to view or notice ; to offer for

inspection or consideration, Exh. often used

of bringing forward witnesses, as well as

evidence, or vouchers, in a Court of, law."

The words "witnesses in attendance" used in

rule 4 of Order XVIII further clarify the

position that witnesses who are brought by

the parties in Court have to be examined by

the Court. Now comparing the word `call'

used in the term of summoning cannot

equate with word produce and in attendance

used in rules 2 and 4 of Order XVIII, C. P. C.

Comparing the terms of art used in Order XVI

and Order XVIII it is manifestly clear that the

Legislature only placed fetters for the call of

W.P.No.18122-2015 6

witnesses through Court for which a list has

to be submitted within 'the prescribed period

under the present rule. Had the Legislature

intended to place similar restrictions on the

production of witnesses by the parties without

the aid of the Court, the word `produce'

should have been inserted in between the

words `proposed to call' and either to give

evidence in rule. I and in-between the word

'to call' and witness used .in sub-rule (2) of

Order XVI, C. P. C. Having not done so, the

intention of the Legislature is, therefore,

absolutely clear that the parties are at liberty

to bring witnesses along with them on the day

when the case is fixed for evidence and the

Court cannot refuse recording of their

evidence according to rule 4 of the said

Order. In Mian Karim Bakhsh v. Firm Thakar

Dass Ram Lal and others (A I R 1941 Lah.

38) Bhide and Din Muhammad, JJ. while

considering former Order XVI, rule 1 of the C.

P. C. observed

"Order XVI, rule 1 is a technical one

and in the absence of any prejudice to either

party, Court is not justified in refusing to

W.P.No.18122-2015 7

examine the witnesses on the ground that

they were not mentioned in the list. The rule

gives the Court discretion to allow witnesses

to be examined even if they are not

mentioned in the list if it is satisfied that there

are sufficient reasons for doing so. The rule

should not be applied mechanically."

“9. We have no doubt in our mind

that the Law Reforms Ordinance, 1972

altered rule 1 of Order XVI to achieve

speedy disposal of cases so as to make

it imperative for the parties to file the list

of witnesses in Court within seven days

of the settlement of issues. Rules 2 and

4 of Order XVIII should have been

deleted or amended in the light of the

amendment made in rule 1 of Order

XVI. The list is, therefore, imperative for

summoning of the witnesses by the

parties, and in the exercise of discretion

vested in them for condoning the delay

for good cause under this rule the

Courts should exercise the power

benevolently. But there is hardly

W.P.No.18122-2015 8

anything which has taken away the

right of the parties to produce witnesses

in Court of their own and the refusal of

the Court to record the statement of

witnesses in attendance. The

irresistible conclusion, therefore, would

be that the parties will have to comply

with the amended rule 1 of Order XVI if

they desire to produce their witnesses

under the authority of the Court, but

they cannot be stopped from producing

evidence in Court on the day fixed for

evidence”.

7. It would not be out of place to make a reference to

another judgment of the Hon’ble Supreme Court of

Pakistan reported as “Mst. Musarrat Bibi and 2 others

v. Tariq Mahmood Tariq”(1999 SCMR 799) in which the

construction put by a Full Bench of this Court on Order

XVI, Rule 1 CPC reproduced hereinabove was approved.

8. The approach of this Court that a party cannot be

debarred or precluded from producing witnesses on its

own and without seeking the intervention of the Court to

call a witness has been consistent, as is evident from the

judgments reported as “Mst. Rukhsana Bibi v.

W.P.No.18122-2015 9

Muhammad Ansar”(2006 YLR 666), “Haji Muhammad

Tufail v. Muhammad Iqbal”(2005 MLD 688) and “Naeem

Akhtar v. Additional District Judge and others”(2005

MLD 1713). In the latter case, it was held as under:-

“5. It is true that without disclosing

sufficient reason and obtaining

permission from the Court nobody can

be permitted to summon or produce the

witnesses other than those contained in

list submitted under Order XVI, rule 1,

C.P.C., yet at the same time the Court

should also not sit as idle spectator

without considering the fault of non-

submission of the list which is usually

considered as act of the counsel. A

litigant is not aware of procedural

requirements of law and to file list of

witnesses being a part of procedural

activity, a counsel engaged by the

parties has to perform such act and for

the fault of a counsel especially when no

serious prejudice is caused to the other

party, no one can be penalized. It is an

established principle of law that Court

W.P.No.18122-2015 10

should not deny a legal right to a party

just on the basis of technicalities or non-

performance of procedural requirement

causing no prejudice to the other party.

In the present case admittedly no list

was submitted by learned counsel for

respondent No.3 within stipulated time

but the authority conferred on the Court

to allow summoning or producing

witnesses not named in the list or non-

submission of list, is always there i.e.

Order XVI rule 2 C.P.C., to meet such-

like eventualities or inaction on the part

of a counsel. In the present case the

learned trial Court or for that matter the

learned Additional District Judge while

allowing respondent No.3 to

summon/produce the witnesses not

named in the list, sufficiently

compensated the petitioner by

burdening respondent No.3 with a cost

of Rs.500, suitably enhanced by the

revisional Court to Rs.1500.

6. When asked, how the petitioner is

W.P.No.18122-2015 11

prejudiced by the evidence of a person,

named in the application whose

evidence prima facie is of general

nature, the learned counsel for the

petitioner failed to come out with any

solid reason except to reiterate the non-

performance of procedural requirement

of Order XVI, rules 1 and 2 C.P.C. I am

therefore, satisfied that non-submission

of list of witnesses within time was

purely due to inaction of the learned

counsel for respondent No.3 and the

learned two Courts below by passing

the impugned order have not committed

any illegality or irregularity but have

corrected the procedural wrong causing

no prejudice to the petitioner. Since the

provisions of procedural law are always

meant for promoting safe administration

of justice and not thwarting justice as

held in the case of "Bundi Begum v.

Munshi Khan (PLD 2004 SC 154)

hence, the two Courts below were

perfectly right in ignoring the rigours of

Order XVI C.P.C., as amended by

W.P.No.18122-2015 12

Lahore High Court Rules, especially

when no prejudice has been caused to

the petitioner and the evidence required

to be produced is general in nature,

therefore, even if the orders of two

Courts below are not in conformity with

the requirements of Order XVI C.P.C.,

but as the said orders are in accordance

with principles of natural justice

requiring that no person be condemned

unheard, hence, I find no force in this

petition which is accordingly dismisses

in limine.”

9. A close parallel to the case of the petitioner is

reported as “Faiz Ahmad v. Zahoor-ul-Haq Siddiqui

and another”(2012 MLD 922), wherein it was held by this

Court as under:-

“No penal provision for the dismissal of

the suit is incorporated in Order XVI,

Rule 1 C.P.C. in case the plaintiff of a

suit does not submit a list of witnesses

in the time prescribed in the Rule,

therefore, the application as moved by

the defendants/respondents was

W.P.No.18122-2015 13

misconceived and should not have been

entertained by the learned Civil Judge.

The case-law reported as Mst. Musarrat

Bibi and 2 others v. Tariq Mahmood

Tariq (1999 SCMR 799) has different

facts as in the said reported judgment

the right of the defendants to produce

the evidence was closed and the

defendant of the suit filed an application

subsequently to produce the witnesses

before the learned Trial Court, which

application was dismissed by the

learned Civil Judge and the order of the

dismissal of the application was upheld.

The facts of the said reported case are

not relevant to the facts of the present

case. In the instant case the petitioner

has not so far produced any evidence

and the case was fixed for allowing the

petitioner/plaintiff to produce evidence

when the defendants of the suit moved

an application for the dismissal of the

suit on the ground that the

petitioner/plaintiff did not file any list of

witnesses. As this application was

W.P.No.18122-2015 14

misconceived, the learned Civil Judge

without applying his mind upon the facts

of the case passed an order dated 11-

12-2009 of closing the right of the

petitioner to produce his witnesses of

his own, which was not at all prayed for

in the application moved by the

respondents and which order even

could not have been passed as the

petitioner has every right to produce the

witnesses of his own without involving

the process of the Court during the trial

of the case. Reliance is placed upon,

Ghulam Murtaza v. Muhammad Ilyas

and 3 others (PLD 1980 Lahore 495),

Iqbal Parekh and 4 others v. Karachi

Building Control Authority (K.B.C.A.)

through Chief Controller of Buildings

(C.C.O.B.) Karachi and 4 others (2008

CLC 1334) Mst. Rukhsana Bibi v.

Muhammad Ansar (2006 YLR 666), Mst.

Aisha Bibi v. Mst. Kaneezan Bibi and

others (1988 CLC 2218),

Haji Muhammad Tufail v. Muhammad

Iqbal (2005 MLD 688)”.

 W.P.No.18122-2015 15

10. It seems that the Sindh High Court has also taken

the same view regarding the interpretation of Order XVI,

Rule 1 CPC. In the case reported as “Tabassum

Khurshid v. Sardar Abid Iqbal and another”(2008 CLC

1337), it was held by it as under:-

“It is to be noted that non-submission of

list of witnesses does not take away the

right of the parties to produce witness in

Court on their own and if the witness is

present in Court the Court cannot refuse

to examine him”.

11. For what has been stated above, the learned Courts

below did not commit any material irregularity nor did they

exceed the jurisdiction vested in them. The order dated

24.09.2014 passed by the learned trial Court and the

judgment dated 07.04.2015 passed by the revisional Court

being unexceptionable, this petition is devoid of merits and

is hereby dismissed in limine.

(MAHMOOD AHMAD BHATTI)

JUDGE
Approved for reporting
Rana Zahid Bashir*
JUDGE