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Civil Petition for Special Leave to Appeal No. 171 of 1980, decided on 8th March, 1980.
(On appeal from the judgment and order of the Lahore High Court dated 26‑1‑1980 in W. P. 8032 of 1979).
-‑O XVI, r. 1 and Constitution of Pakistan (1973), Art. 199‑List of witnesses‑Witnesses, production of‑Question whether delay in filing application under O. XVI, r. 1 fit to be condoned or not question within discretion of trial Court to decide‑Trial Court empowered to condone delay and allow application‑Trial Court though acted in breach of provisions of O. XVI, r. 1 in allowing application and its order an erroneous exercise of jurisdiction, yet such order, held, not without jurisdiction and accordingly remedy of writ petition totally misconceived.
Kh. Muhammad Farooq, Advocate and Inayat Hussain Shah, Advocate- on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing : 8th March 1980.
‑This petition arises out of an interlocutory order passed in a suit which was filed nearly thirteen years ago by the petitioner. The suit is apparently pending in the Court of the Civil Judge, Second Class, Chunian, And, its hearing has been delayed by two revisions filed earlier by the parties against interlocutory orders passed by the trial Court, The history of this suit in which both parties appear to have com peted in order to prolong litigation is not relevant to this petition for leave and it is sufficient to state that new parties were impleaded by the petitioner, in his suit in July, 1978. This was more than eleven years after the institution of his suit, Be that as it may, he had filed his list of witnesses on the 26th of June, 1978, The defendant failed to file his list of witnesses for a long time and was thus in breach of the provisions of Order XVI, rule 1 of the Civil Procedure Code, However, he filed an appli cation under this rule in January, 1979, and, according to Mr. Farooq, notice of this application was ordered to be issued to the petitioner, but was in fact never issued. Be that as it may, the case came up before the trial Court for the plaintiff's evidence on 8‑2‑1979, but was adjourned as the plaintiff's witnesses were not available, Further, according to Mr, Farooq, after the adjournment and behind the petitioner's back, the trial Court on the same day allowed the respondents application under Order XVI, rule 1 of the Civil Procedure Code on payment of Rs, 25 as costs, The petitioner, therefore, challenged this order in a revision in the District Court, Kasur, and the revision was pressed by the petitioner on the basis of the amendment in Order XVI of the Civil Procedure Code by the Law Reforms Act of 1972. After noting the changes in the law, the learned Additional District Judge observed: ‑
"However, even under the amended law the trial Court is competent to grant permission to a party to produce the witnesses even if the list has not been submitted within the prescribed time and in this case the trial Court has passed the perfectly legal order and no exception can be taken to it."
Accordingly, as the petitioner's revision was dismissed, he filed a writ petition against the order of the learned Additional District Judge in the High Court. But, as that writ petition was dismissed, he has filed this petition for leave.
The question whether the respondents' delay in filing his application under Order XVI, rule 1 of the Civil Procedure Code was fit to be con doned or not was a question within the discretion of the trial Court and as rightly observed by the Additional District Judge, the trial Court had power to condone the delay and allow the respondents application. There fore, Mr. Farooq submitted that the trial Court's order was without jurisdiction is neither correct nor reasonable. Undoubtedly the trial Court had the jurisdiction to pass the order, which it did. It is true that it acted in breach of the provisions of Order XVI, rule 1 and, therefore, the order passed was an erroneous exercise of its jurisdiction. But, this does note mean that the order is without jurisdiction therefore, the remedy of a writ petition was totally misconceived.
Additionally, if we were to accept the petitioner's contention it would make a fetish of technicalities therefore, on this ground also it is not a fit case for the grant of special leave.
The petition is without merit and is dismissed.
Leave not granted.
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