' MUHAMMAD JEHANGIR ARSHAD, J.---Petitioner is aggrieved of order dated 19-5-2005 passed by Additional 'District Judge, Multan whereby application filed by the petitioner for submission of list of witnesses in money suit was dismissed by the learned trial Court.
2. The facts in brief are that petitioner filed suit on 20-3-2003 for the recovery of Rs.Two lacs against the respondent in summary jurisdiction on the basis of negotiable instrument i.e. Pro note and after obtaining leave to defend and appear respondent filed written statement on 19-5-2003, on which date, learned trial Court framed issues and directed the parties to file list of witnesse's within seven days and fixed 28-5-2003 as the next date of hearing for the purpose of recording petitioner's evidence. However for one reason or the other the evidence could not be produced and an objection was raised by respondent that due to non-submission of list of witnesses within the prescribed time the petitioner's evidence be closed. His objection necessitated the petitioner to file an application on 22-7-2003 for permission to file list of witnesses. The said application was allowed by the learned trial Court on 9-10-2003 subject to payment of costs of Rs.200 but due to inaction of the learned counsel for the petitioner no list of witnesses in terms of the above mentioned order dated 9-10-2003 was submitted and the case was kept on adjourning from one date to another for recording of petitioner's evidence. However, on 10-2-2004 an application was moved by the respondent praying that as the petitioner failed to submit the list of witnesses in compliance with order dated 9-10-2003, hence she be deoarred from producing the evidence and her right of evidence be closed. While deciding the said application of the respondent the learned trial Court vide order dated 30-10-2004 directed to the petitioner to examine herself and other witness, namely, Ghulam Mustafa, deed writer. This order was not challenged by either of the parties but subsequently on 10-2-2005 another application was moved by the petitioner praying that she be allowed to file list of witnesses containing the name of Fazal Hussain and Altaf Hussain, the attesting witnesses of the pro note besides the name of Ghulam Mustafa deed writer already allowed by the Court on 30-10-2003 and further that she be allowed to produce these witnesses in her affirmative evidence. This application was contested by the respondent. Resultantly the learned trial Court vide order dated 19-5-2005 dismissed the same, hence this civil revision.
3. It has been argued by the learned counsel for the petitioner that petitioner is a Parda Nasheen lady and was not aware of the technicalities qua the submission or non-submission of list of witnesses within the prescribed time. Further submits that at-the most the learned trial Court could only debar the petitioner from summoning the witnesses through the Process Serving Agency in the absence of list of witnesses in terms of Order XVI, rule 1, C.P.C. Yet still the petitioner has right of producing the witnesses in attendance- in terms of Order XVIII, rule 4, C.P.C. Reliance has been placed in the case of "Haji Muhammad Tufail v Muhammad lqbal" (2005 M LD 688). Further submits that despite the amended provisions contained in Order XVI, rule 1, C.P.C. The power of the Court to permit production of witnesses is still available in terms of Order XVI, rule 1(2), C.P.C. And in support of this contention reliance has been placed on the case of "Umar Hayat v. Additional District Judge and others (2004 SCM R 1367).
4. On the other hand learned counsel appearing on behalf of the respondent has vehemently argued that as despite the order dated 9-10-2003 the petitioner failed to avail the opportunity of submitting list of witnesses and remained silent till 2005 and that the order dated 30-10-2004 was never challenged by the petitioner before any Court thus the same attained finality and the learned trial Court rightly passed the impugned order. Further submission is that as held by the Honourable Supreme Court of Pakistan in the case of "Mst. Musarat Bibi and 2 others v. Tariq Mahmood Tariq" (1999 SCM R 799) the provisions of Order XVII, rule 1(2), C.P.C. Are mandatory and the Court has got no jurisdiction to extend the time for the purpose of filing list of witnesses.
5. I have considered the arguments of the learned counsel for the parties and have also perused the record.
6. The ultimate appraisal of the record leads me to conclude that this is a case of sheer negligence on the part of learned counsel for the petitioner who represented the petitioner before the learned trial Court as who despite order of the learned trial Court dated 19-5-2003 and 9-10-2003 did not opt to comply with the requirement of submission of list of witnesses within the time allowed by the trial Court but simultaneously the distinction pointed out by this Court between Order XVI, rule 1, C.P.C. And Order XVIII, rule 4, C.P.C. In the judgment relied upon by the learned counsel for the petit:Jner i.e. 2005 M LD 688 whereby it has been held by this Court that the Court is bound to record the evidence of the witnesses in attendance despite amendment having been made in Order XVI, rule 1, C.P.C. Cannot be brushed aside. It is established principle of law that where the Court has to follow one of the provisions between the two, one which favour the administration of justice should be followed. Although the petitioner cannot summon the two witnesses, namely, Fazal Hussain and Altaf Hussian due to nonsubmission of list of witnesses and the embargo created by Order XVI, rule 1, C.P.C. Yet she cannot be deprived of her right to produce evidence per force of Order XVIII, rule 4, C.P.C. Again as held by Honourable Supreme Court of Pakistan in (PLD 2004 SC 1367) cited above the powers of the Court to allow the examination of witnesses not mentioned in the list of witnesses is still available subject to showing good cause. To me the manner in which learned counsel for the petitioner representing her before the trial Court acted; is a good cause for allowing the petitioner to produce both the said witnesses in her evidence and it would not be in the interest of justice to non-suit her on the ground of technicalities which the petitioner being a lady was not aware at all. I am also at a loss to understand the manner in which the trial of this suit is going on before the trial Court almost rendering the object of speedy trial under Order XIII, rule 3, C.P.C. Completely ineffective and failure. The suit filed on 20-3-2003 is still at a stage where the plaintiff has yet to start her evidence and the period in between has been put to waste by either of the parties by raising technical objection or by not complying with Court order. I am, therefore, satisfied that in terms of Order XVIII, rule 4, C.P.C. The learned trial Court could not debar the petitioner from getting evidence of Fazal Hussain and Altaf Hussain recorded as witnesses if their attendance is made available in the Court by the petitioner at the time of recording of evidence. This petition is accordingly allowed. The order dated 19-5-2005 passed by the learned trial Court is set aside and petitioner is allowed to get the evidence of both these witnesses recorded if they were in attendance at the time of recording evidence and also the deed writer, namely, Ghulam Mustafa already allowed by the learned trial Court on 30-10-2004. This order shall, however, be subject to payment of costs of Rs.2,000 as a condition precedent before recording evidence of the a.
Petitioner. In case the petitioner fails to pay the cost this revision petition shall be deemed to have been dismissed. It is, further, directed that as the suit of the petitioner is being kept pending since 20-3-2003 though in summary jurisdiction, hence the learned trial Court shall ensure the conclusion of trial on or before 31-3-2006 with compliance report to the Additional Registrar of this Bench and for that matter if need be the learned trial Court shall hold day to day proceedings.