' This Writ Petition calls in question the order dated 26-11-2004 whereby the Civil Judge/respondent No.2 accepted application filed by respondent No.3 for summoning of witnesses in a suit for specific performance of agreement to sell filed by him and also the order dated 20-4-2005 passed by learned Additional District Judge, Bahawalpur Camp at Yazman/respondent No.1 by which the revision filed by the petitioner against the above mentioned order of respondent No.2 was dismissed.
2. In short the facts relevant for the disposal of this Civil Revision are that respondent No.3 filed a suit for specific performance of agreement to sell dated 3-2-1999 in respect of agricultural land measuring 33 Kanals 7 Marlas situated in Chak No.86/DB Tehsil Yazman District Bhawalpur for consideration price of Rs.6,50,000. The said suit is being contested by the petitioner who vide written statement dated 10-4-2002 denied execution of any agreement and by terming the said agreement as forged, fictitious, based on fraud, result of mala fide, without consideration, collusive, against law, hence ineffective qua his rights, sought dismissal of the said suit. Keeping in view the divergent pleadings of the parties, the learned trial Court on 6-9-2002 framed issues and put the parties at trial directing them to submit their list of witnesses within seven days. It appears that respondent No.3 failed to submit any such list of witnesses in time; hence, he moved an application on 6-6-2003 praying for permission to summon two witnesses named therein. Along with the said application list of witnesses was also attached. However, for some reason the said application was not pressed, instead a new application to this effect was moved on 2J-7-2003 and again on 29-10- 2004 third application to the same effect was moved. This application was contested by the petitioner but the learned trial Court vide order dated 26-11-2004 allowed the application subject to payment of costs of Rs.500. Feeling aggrieved against the said order of the trial Court, the petitioner filed a Revision but the same was dismissed by learned Additional District Judge/respondent No.1 on 20-4-2005 with the modification that costs of Rs.500 imposed by the trial Court was enhanced to Rs.1500. The petitioner has now challenged the above mentioned orders of two Courts below through this writ petition.
3. The only grievance being agitated in this Writ Petition is that there was no justification for the trial Court to have allowed respondent No.3 to summon the witnesses after his failure to file list of witnesses within the specified time of seven days from the date of framing of issues. The contention of the learned counsel is that after amendment incorporated by the Lahore High Court in Order XVI rule 2 C.P.C., the learned trial Court could only permit respondent No.3 to call or produce witnesses not named in the list, except after the respondent No.3 had shown good cause for non-submission of list and as respondent No.3 failed to disclose any good cause, the learned trial Court could not allow his prayer and similarly the learned revisional Court/respondent No.1 also erred in law by dismissing civil revision filed by the petitioner.
4. I have considered the arguments of learned counsel and also the provision of Order. XVI, rules 1 and 2 C.P.C.,
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 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 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 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.