Present: Sagheer Ahmed Qadri, J.
MUHAMMAD AKHTAR
KIANI--Petitioner
versus
ADDITIONAL
DISTICT JUDGE, RAWALPINDI
and others--Respondents
W.P. No. 2369 of
2011, decided on 12.12.2011.
Civil Procedure
Code, 1908 (V of 1908)--
----O. XVI, R.
1--Constitution of Pakistan,
1973, Art. 199--Constitutional petition--Summoning and attendance of
witnesses--Mandatory for parties to the suit to submit list of witnesses within
seven days of framing of issues--When mandatory provisions of CPC were not
complied with by plaintiff--Application for summoning postman as witness was
moved by plaintiff--Objections about maintainability of application as no
sufficient cause was shown for non-filing of list of witnesses and right of
preemption otherwise was practical right--Application was dismissed by Courts
below--Challenge to--At that time plaintiff was not able to submit list of
witnesses alongwith certificate of readiness--No
doubt the Court can exercise discretion at any stage for allowing party to suit
for summoning of a witness whose name could not be included in list of
witnesses or even list of witnesses at all could not be submitted to get
exercised such discretion in favor of party must show a good and sufficient
cause for that purpose--Plaintiff wanted to fill-up lacuna left at time of
filing of plaint and subsequent when he was directed to submit list of
witnesses he did not comply with mandatory provisions of Order XVI, Rules 1
(1), CPC--Courts below rightly declined to exercise vested in them in favor of
plaintiff as no good cause was shown which was mandatory requirement for
exercising of jurisdiction u/O. XVI, R. 1 (2), CPC--Petition was dismissed. [Pp. 278 & 279] A & B
1999
SCMR 799, 1989 MLD 4119, 1992 ALD 425(1), 1980 CLC 1815, NLR 1991 Civil 354,
1989 CLC 42 & 2008 YLR 1871, ref.
Mr. Imran Shafique, Advocate for
Petitioner.
Raja Muhammad Aslam, Advocate for Respondents Nos. 3 & 4.
Date of hearing:
12.12.2011.
Order
Petitioner-plaintiff
Muhammad Akhtar Kiani S/o
Muhammad Yousaf filed suit for possession through
pre-emption in respect of land measuring 139 Kanals 4
Marlas of land detail of which is given in the head
note of the plaint alleging that the factum of sale came into his knowledge on
20.7.2010 at about 9.40 a.m. and he immediately pronounced his intention to
pre-empt the sale and subsequently on 27.7.2010 sent notice of Talb-i-Ishhad attested by two witnesses through registered
post acknowledgment due to Respondents No. 3 & 4/defendants; that the
petitioner-plaintiff claimed his superior right of pre-emption being Shafi Shareek and Shafi Khaleet. This suit was
resisted by the Respondents-Defendants No. 3 & 4 while submitting their
written statement whereby it was specifically denied performance of Talb-i-Mawathibat and Talb-i-Ishhad.
Out of the pleadings of the parties learned trial Court framed issued on
16.10.2010 and passed the following orders:
"No other
issue has been suggested. List of witnesses and certificate of readiness be
submitted within seven days from framing of issues. Come up for evidence of
plaintiff for 25.1.2011."
2. The learned trial Court recorded statements
of PWs on behalf of the petitioner-plaintiff till 24.5.2011 when he moved
application with a prayer for summoning of the Postman as witness on the
grounds that as notice of Talb-i-Ishhad was issued to
Respondents-Defendants No. 3 & 4 through registered post which they refused
to accept and the petitioner-plaintiff could not submit the list of witnesses
in time and as the Postman was an essential witness, therefore, while allowing
the application he be summoned. This application was resisted by
respondents-defendants raising two preliminary objections about maintainability
of the application as no sufficient cause was shown for non-filing of the list
of witnesses within specified period and right of pre-emption otherwise is a
piratical right hence if application is allowed it will tentamounts
to fill in the lacunas left in the evidence. On factual side it was further
agitated that as performance of Talb-i-Ishhad has not
been proved on record on the basis of pleadings hence no justification is
available for allowing this application.
3. Learned trial Court after hearing both sides
vide order dated 7.6.2011 dismissed the application of the
petitioner-plaintiff. Feeling aggrieved petitioner-plaintiff preferred a
revision which was heard and decided by learned Additional District Judge who vide judgment dated 6.9.2011 while affirming findings of the
trial Court dismissed the civil revision. Hence, this writ petition before this
Court.
4. Learned counsel for the petitioner-plaintiff
contends that the order/judgment passed by the trial Court affirmed by the
appellate Court are against law and facts of the case; that a sufficient cause
was brought on record for non-filing of the list of witnesses, therefore,
learned trial Court must have to allow the application of the petitioner as
intention of law is to dispose of the lis between the
parties on merits rather on technicalities; that admittedly the notice was
issued hence Postman was necessary and essential witness to discharge the onus
of issue placed on the petitioner-plaintiff thus both the Courts below
committed illegality while non-exercising jurisdiction vested in them. While
relying on M/s. Varan Tours Vs. Province of the
Punjab and others (2011 YLR 5), Naeem Akhtar Vs. Additional District Judge and others (2005 MLD
1713), The Australasia Bank Limited Vs. M/s. Mangora
Textile Industries, Swat and others (1981 SCMR 150) and Muhammad Bashir and others Vs. Abbas Ali
Shah (2007 SCMR 1105) prayed that this writ petition be allowed and impugned
order/judgment both the Courts below be set aside.
5. On the other hand learned counsel for
Respondents No. 3 & 4/defendants has vehemently opposed this petition on
the grounds that it is mandatory under Order XVI, Rule 1 CPC for the parties to
the suit to submit list of witnesses within seven days of framing of issues.
Admittedly learned trial Court specifically directed the petitioner-plaintiff
to submit list of witnesses which he did not and subsequently he got recorded
statements of the witnesses and at belated stage without showing any
justification or sufficient cause moved application moved application for
summoning the Postman on the same reasons. Learned counsel contended that in
the circumstances when mandatory provisions of the Civil Procedure Code were
not complied with by the petitioner-plaintiff, the prayer
made by the petitioner-plaintiff was rightly declined by both the Courts below.
Reliance in this respect has been placed on Mst.Musarrat
Bibi and 2 others Vs. Tariq Mahmood
Tariq (1999 SCMR 799), Saeed Ahmad Vs. Muhammad Anwar
and others (1989 MLD 4119), Mst.Surriya Begum and 3
others Vs. Abdul Rub and 4 others (1992 ALD 425(1) Karachi), Abdul Jalil and another Vs. Mansoor
Ahmad (1980 CLC 1815) Khadim Hussain
Vs. Additional District Judge, R.Y.Khan, etc. (NLR
1991 Civil 354) Mst. Hanifan
Khatoon Vs. Second Additional District Judge, Khanpur and others (1989 CLC 42) and Muhammad Khalid Vs. Mst.Mehmooda Khanum and 9 others (2008 YLR 1871). Prayed
that this writ petition be dismissed.
6. I have heard the learned counsel for the
parties and perused the record.
7. In order to appreciate the arguments advanced
by both sides it is beneficial here to reproduce the provision of Order XVI,
Rules 1, 2 C.P.C--
"SUMMONING
AND ATTENDANCE OF WITNESES:--
1. Summons to attend to give evidence or
produce document--
(1) No later than seven days after the
settlement of issues, the parties shall present in Court a certificate of
readiness to produce evidence, alongwith a list of
witnesses whom they propose to call either to give evidence or to produce
documents.
(2) 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 permission, it shall
record reasons for so doing.
(3) On application 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. As earlier observed that learned trial Court
on 16.10.2010 while casting issues specifically directed the parties to submit
certificate of readiness along with list of witnesses within seven days. The
petitioner-plaintiff did not comply with mandatory provision of Order XVI, Rule
1(1) CPC and kept on waiting till the day when the statement of witnesses on
his behalf had already been recorded and cross-examined and yet he opted to
move application on 24.5.2011 with a prayer for summoning of the Postman as
witness. Para-2 to 4 of the application are relevant
which are hereby reproduced:
9. If the above mentioned application is seen no
"good cause" is shown on the basis of which it can be proved that at
the relevant time the petitioner-plaintiff was not able to submit list of
witnesses along with certificate of readiness. No doubt the Court can exercise
discretion at any stage for allowing a party to the suit for summoning of a
witness whose name could not be included in the list of witnesses or even the
list of witnesses at all could not be submitted to get exercised this
discretion in favour of a party must show a good and
sufficient cause for that purpose. The judgment cited by learned counsel for
Respondents No. 3 & 4/defendant titled as Mst. Musarrat Bibi and 2 others Vs.
Tariq Mahmood Tariq (1999 SCMR 799) their Lordships
in the Supreme Court observed as under:--
`O.XVI. R. 1--List of
witnesses. Purpose. Filing of list of witnesses within
statutory period of seven days was sine qua non for the progress of suit in
Court--Provisions of O. XVI, R. 1, C.P.C. did not fall within purview of `sheer
technicalities' but were strictly in accordance with principles of natural
justice that a party should have knowledge of witnesses of its rival so as to
enable same to test veracity of those witnesses and prepare cross-examination
advance--Defendants who had failed to file list of witnesses within statutory
period of seven days after settlement of issues had contended that two out of
three defendants being females and illiterate, discretion should have been
exercised in their favour and that controversies were
preferably to be resolved on contest and that course of justice should not be
thwarted by sheer technicalities, was repelled being untenable, in
circumstances."
In a suit for
pre-emption proving of Talb-i-Mawathibat first and subsequent to that Talb-i-Ishhad
is sine qua non to the exercise of right of pre-emption. In recent judgments of
Hon'ble Supreme Court of Pakistan even in such like
cases in plaint/pleadings the performance of Talbs
could not be properly recorded/asserted declined even to allow permission to
amend the pleadings.
11. Herein in this case petitioner-plaintiff at
belated stage wanted to fill up the lacuna left at the time of filing of the
plaint and subsequent when he was directed to submit list of witnesses he did
not comply with the mandatory provisions of Order XVI, Rules 1(1) CPC,
therefore, both the learned Courts below rightly declined to exercise
jurisdiction vested in them in favour of the
petitioner-plaintiff as no good cause was shown which is mandatory requirement
for exercising of the jurisdiction under Order XVI, Rule 1(2) CPC. Resultantly,
this writ petition, being devoid of any merits, is hereby dismissed.
(R.A.) Petition dismissed.
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