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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
Order/
Proceeding
Date of
order/
proceeding
Order with signature of Judge and that of parties or
counsel where necessary
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
Dated 26.06.2018.
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.
Dated 26.06.2018.
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
8Writ Petition No. 9643 of 2018
Dated 26.06.2018.
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
Dated 26.06.2018.
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
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
Writ Petition No. 9643 of 2018
Dated 26.06.2018.
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
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