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Writ Petition No. 5168 of 1978, decided on 29th October 1978.

(a) Civil Procedure Code (V of 1908)-

-- O. XVI, r. 1-Witnesses, summoning of-Purpose of provision to bind down a party to such witnesses who, according to him, would depose about issues framed, in order to shorten litigation and to avoid afterthoughts.-[Witness].

(6) Civil Procedure Code (V of 1908)--

--- O. XVI, rr. 1, 7 & 14-Witnesses, summoning of-Witnesses not named in list filed under r. 1-Cannot be called to depose except with permission of Court-Court may, however, also summon any witness at its own instance under rr. 7 & 14.-[Witness].

Aamer's Civil Procedure Code, 1976 Edn., para. 3 ; Mian Karim Bakhsh v. Firm Thakar Das-Ram Lai and others 1931 C 166 ; Civil Procedure Code by Shaukat Mahmood, 1963 Edn. and M. Farant, 1978 Edn. ref.

(c) Constitution of Pakistan (1973)-

-- Art. 199-Writ-Court below not appearing to have acted illegally or without lawful authority in interpreting a provision of law in such a way which prima facie was ether perverse or erroneous-No writ, held, could lie in such situation.

Muhammad Hussain Munir's case P L D 1974 S C 139 ref.

Mian Munawar Hussain for Petitioner.

The plaintiff/respondent who had filed a suit for possession in 1973 closed their affirmative evidence on 13th December, 1976. The suit was then fixed for the evidence of the petitioners for 5th of February, 1977, but the same was declared as a public holiday. The last date was 22nd of July, 1978 when the petitioners appeared alongwith their witnesses.

2. On that date, the respondents raised an objection that as the petitioners had not complied with the provisions of Order XVI, rule 1, they should not be allowed to examine their witnesses. The learned trial Court accepted their plea, on the ground, that had failed to submit the list of witnesses, within 7 days of the framing of Issues, and declined to record petitioners' evidence. It was further pointed out that the petitioners had even not filed any application for the purpose and showing good cause for their omission as laid down in Order XVI, rule 1(2). He however permitted recording of the statement of defendant No. 2 on payment of Rs. 60, as costs. The petitioners challenged that order in a revision petition, but the same was dismissed by the learned Additional District Judge and hence this petition.

3. It is contended by the learned counsel that Order XVI, rule 1 applies to such cases in which witnesses are to be called through the Court and not to those who are brought by a party. He relied for this plea, on an amendment made on 15th of October, 1932 by this Court by adding a proviso. It was stated that discretion was conferred by that amendment in the Court, to permit a party to produce any witness not named in the list filed with the Court, after stating reasons.

4. Order XVI, rule 1 had been incorporated in the present shape under the Law Reforms Ordinance, 1972. The apparent purpose of this provision seems to be to bind down a party to such witnesses, who according

Ito him would depose about the issues framed, in order to shorten the litigation and to avoid afterthoughts. Further, any other person not named in the list can be called to depose but not by the parties. It can be done either at the instance of a party with the permission of the Court under Order XVI, rule 1(2) or by the Court under rules 7 and 14 of the same Order. The Punjab amendment taken from Aamer's C. P. C., 1976 Edition and referred to in paragraph 3 above is as follows:

"Provided that no party who has begun to call his witnesses shall be entitled to obtain process to enforce the attendance of any witness against whom process has not previously issued, or to produce any witness not named in a list, which must be filed in Court on or before the date on which the hearing of evidence on his behalf commence and before the actual commencement of the hearing of such evidence without an order of the Court made in writing and stating the reasons therefor."

It also came up for interpretation in Mian Karim Bakhsh v. Firm Thakar DasRam Lai and others (193 1 C 166) wherein it was held that all witnesses need not be named in the list originally filed and that a party can file his list uptil the moment he actually commences to lead evidence.

The above amendment is not shown in the C. P. C. compiled by Shaukat Mahmood 1963 Edition, M. Farani's 197-s Edition and Pakistan Law Journal, 1976 Edition. In any case the effect of the High Court amendment has been whittled down by the Law Reforms Ordinance, 1972. The intention of the Legislature is thus quite clear from the amended provisions.

5. Order XVI, rule 1 provides that the parties have to present a list of witnesses:

"whom they propose to call . . . . . "

This list is conclusive as far as the parties are concerned as it would include the names of all the witnesses to be called whether their attendance will be produced with or without the process of the Court. The parties can bring alongwith them all those witnesses out of the list whom they do not want to be summoned through the Court. They, however, can get the process issued and effect service either through the Court or do the same themselves, if so required by the Court, as provided in Order XVI, rule 7-A. Rule 1(2) allows a departure from rule l(l). Under it a party can be permitted to call witnesses other than those contained in the list with the permission of the Court and after showing good cause for omission on its part, to include them in the list furnished. It reads as follows :

"A party shall not be permitted to call witnesses other than those contained in the said list except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; and if the Court grants such p:rmission, it shall record reasons for so doing."

The Court has to give reasons for giving such a permission. The only other provisions, in which persons, other than those given in the list provided under Order XVI rule 1(1) can be called, are contained in rules 7 and 14 of Order XVI and that is at the instance of the Court itself.

6. Again there does not appear to be any good reason for the construction of Order XVI, rule 1(1), the way it is proposed by the petitioners. The list of witnesses under Order XVI, rule 1(l) is to be given within 7 days after the settlement of issues. However, if a party wants the assistance of the Court to require the attendance of any witnesses under rule 1(3) of Order XVI, it may apply to the Court to obtain summons for the attendance of such witnesses. If the service is sought t4 be effected through Court, under rule 8, the application must be made not later than 14 days before the date of hearing. Thus it will be seen that while actual attendance is connected with service and procedure and Order XVI, rule 1(3), the submission of the list of witnesses to be called is connected with the settlement of Issues. Further the list must be submitted within 7 days while the application for summons for service through Court should be made not later than 14 days before the date of hearing. There is thus no connection between list of witnesses and their service except the service coulJ be only of those witnesses who are mentioned in the list. In other cases the provisions of Order XVI, rules 1(2), 7 and 14 shall apply.

7. In any case it cannot be said that the Court below acted illegally or] without lawful authority in interpreting a provision of law in a way which on the face of it is either perverse or erroneous. It was held in Muhammad Hussain Munir's case (PLD 1974 SC 139) that no writ shall lie in such a situation.

In view of the above, I do not find any merit in this petition which is dismissed in limine.

s, Q. Petition dismissed.

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