The plaintiff-petitioner filed a suit against the defendant respondent for a declaration and consequential relief in regard to his ownership and possession of a residential `ahata' measuring 1 kanal, 15 marlas situated in Chak No. 84/R. B., Tehsil and District Sheikhupura. The suit was contested by the respondent and issues on the basis of the disputes raised in the pleadings were framed on the 28th of November 19717. Under Order XVI, rule 1, C. P. C. As substituted by the Law Reforms Ordinance, 1972 the petitioner was bound to file a list of his witnesses within 7 days of the framing of the issues. He failed to do so. He however, submitted an application for permission to file a list on the 14th of January, 1978, several weeks after the framing of the issues. He attempted to explain the ground of delay by stating that he had been trying to contact the witnesses who belonged to Sialkot and for this reason could not submit his list within time.
2. The learned trial Judge dismissed the application on the 6th of February 1978 on the ground that the above-mentioned reason was not substantiated since only two out of the several witnesses mentioned in the list belonged to Sialkot, while the others belonged to Sheikhupura.
3. The learned Additional District Judge refused to exercise his revisional jurisdiction in favour of the petitioner on the same ground. It was urged before him that the provisions of Order XVI, rule 1 were not mandatory. The learned Additional District Judge did not, however, find any ground to interfere with the exercise of discretion by the learned trial Court and dismissed the petition as being without merit on the 13th of May, 1978.
4. The new points which were not taken before the Courts below have been raised in the writ petition. The first point is that a power to amend a rule having been given to the High Court by section 121 read with section 127 of the Code of Civil Procedure, rule 1 of Order XVI, as amended by the High Court in the year 1932 would hold the field in preference to rule 1 as enacted by the Law Reforms Ordinance, 1972. The second point is that in any case the learned trial Court had no jurisdiction to close the evidence of the petitioner since no such penalty is provided in the rule itself.
5. The learned counsel as stated above relied upon the rule-making powers of the High Court as provided by section 121 read with section 127 of the C. P. C. Rule 121 provides that the rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part. Section 122 authorises the High Courts to make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendent and to annul, alter or add to all or any of the rules in the First Schedule. Then follows the provisions about the constitution of the Rule Committee, its working and the manner it proposes to annul, alter or add to the rules in the First Schedule or to make new rules. Section 127 provides that the rules so made and approved by the Government shall be published in the official Gazette and shall from the date of publication or from such other date as may be specified have the same force and effect within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the First Schedule.
6. Rule 1 of Order XVI as stood before its amendment by the Ordinance of 1972 read as follows : "At any time after the suit is instituted, the parties may obtain, on application to the Court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents.
7. The Lahore High Court added a proviso to this rule to the following effect, w. e. f. 15-10-1932 "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 commences 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."
8. The Law Reforms Ordinance, 1972 substituted rule 1 of Order XVI with the following rule "1. Summons to attend to give evidence or produce documents.-(1) Not later than seven days after the settlement of issues, the parties shall present in Court 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 to 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."
9. Learned counsel for the petitioner argued that in view of the provisions of section 121 read with section 127 of the Code of Civil Procedure the rule as framed by the High Court and approved by the Government with effect from 1932 should hold the field.
10. This argument which calls in question the authority of the Legislature to amend any rule or Order in Schedule 1 of the Civil Procedure Code is not tenable in view of the powers of the Legislature enshrined in the successive Constitutions to amend inter alia the Code of Civil Procedure. The rules' framed by the High Court become a part of the Code only after their approval by the Government of the Province and their publication in the official Gazette. The authority of the Legislature to amend the Code includes the power to amend even the rules made by the High Courts. This would help' in bringing about uniformity in the rules throughout the country.
11. The other point is equally without force. There is a provision in sub-rule (2) of rule 1 of Order XVI that 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. This is a specific penalty provided in the rule. All that the Court has said in this case is that the petitioner will not be able to produce any witness since no such list as required by the rule had been submitted.
12. For the reasons given above, the petition is without merit and is dismissed to limine.