The back ground of this civil revision is that a suit was instituted by Qazi Muhammad Irshad and two others against WAPDA through Chairman and 4 others of the said Authority for declaration to the effect that plaintiffs are not liable to pay Rs, 12,65188/- as arrears regarding their property called Green Lodges, that Green Lodges are domestic accommodation, rented out to different persons for residence from time to time, and other reliefs. The suit was contested, issues were framed and statements of the witnesses and statement of Qazi Muhammad Irshad, one of the plaintiffs, was recorded, and the counsel for the plaintiffs closed the evidence except the right of the plaintiffs to produce evidence in rebuttal. Muhammad Javed, Iqbal record keeper was examined as P.W. 2 who was asked about the site-plan and taxation of the 10 houses. It was not in his knowledge if any notice was served on the plaintiffs for change of taxation to commercial rate and he was not in a position to say that what was the final position of taxation approved by the Board. The defendants/petitioners before us submitted an application to the effect that Assistant Supdt. Revenue, Cantonment Board, Abbottabad be called as witness, as clerk of the Cantonment Board could not produce complete record. A request was made for amendment of the list of witnesses to this effect. This request was turned down by the learned Civil Judge, Abbottabad vide order dated 4.4.2006. Hence this revision.
2. During the arguments of the learned counsel of the parties and the perusal of record, the learned counsel for the petitioners referred to the statement of Muhammad Javed Iqbal, record keeper, Cantonment Board. Abbottabad, who had shown his ignorance about the notices and the final position of the taxation approved by the Board. lie contended that at the time of submission of list of witnesses, the defendants believed that the said clerk would be in a position to produce the relevant record and make proper statement regarding the site-plan, the notice as well as the final position of the approved taxation, and. therefore, they did not list an other official of the Cantonment Board as witness of the defendants. But, due to failure of the clerk named above, the defendants were constrained to submit the application to bring on record the relevant evidence and documents so that complete justice could be done to the parties.
3. The learned counsel for the respondents, however, contended that the defendants had a chance to ask the record keeper to bring the record which they did not ask at the proper time and, therefore, they could not avail a second chance for producing the evidence which they had failed to produce through the above named witness.
4. The learned counsel for the parties discussed in detail the provisions of Order XVI Rules 1,7 and 14 of the Code of Civil Procedure 1908, and the learned counsel for the petitioners relied on 1994 CLC 1920, 1995 CLC 327 and 2003 MLD 1332 while the learned counsel for the respondents relied on PLD 1980 Lahore 495 and 1999 SCMR 799. The learned counsel for the petitioners contended that the Courts are expected to allow the parties leniently to call the necessary witnesses, that the cases are expected to be decided on merits and technical knock-out is to be avoided as fat as may be possible.
5. In order to properly appreciate the arguments on behalf of the parties, it is necessary to discuss the provisions of Rules 1, 7 and 14 of Order XVI of the Code of Civil Procedure, 1908. The parties are legally bound to present in Court a list witnesses whom they propose to call either to give evidence, or to produce document. No witness will be called by a Court if no list of witnesses in accordance with sub-rule (1) of Rule 1 mentioned above is submitted by the concerned party. It is binding on the concerned parties under the mentioned law to either produce list of witnesses to be called under the authority of the Court or deprive themselves of the evidence of such persons who names are not provided to the Court in a list. The failure of a party to provide a list of witnesses to a Court at all deprives that party of a chance to request, later on, the Court that some persons be called as witnesses of that party. A party who does not obey the law and complies with the requirements of law is not entitled to get the support of law to the extent of his own negligence, indolence and failure.
6. It has clearly been provided in sub-rule (2) of Rule 1 that a party shall not be permitted to call witnesses other than those named in his list of witnesses, except with the permission of the Court, and showing good cause for the omission of the said witnesses from the said list. The submission of a list of witnesses in accordance with the provisions of sub-rule (1) of Rule 1 of Order XVI mentioned above is a condition precedent for a further request for calling other persons as witnesses with the permission of the Court. The provisions of sub-rule (2) will not be applicable at all when the condition of the above referred sub-rule (1) is not complied with. Further explanation of the two sub-rules is that the Court shall record reasons for granting permission when such permission is granted and it would check the good cause shown by the concerned party for the omission of the said witnesses from his list of witnesses.
7. Rule 7 of the said Order, however, empowers and authorizes the Court to require any person present in Court to give evidence or to produce any document then and there in his possession or power. This power can be used by the Court suo motu or on the application or request of a party.
The provisions of Rule 7 are empowering and authorizing in nature, so that the Court may have the authority and power in order to meet the ends of justice.
8. Rule 14 of the said Order is applicable to a situation when such persons are not present before the Court. But, if the Court at any time thinks it necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit, such a Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document. This rule is also authorizing and powering the Court in order to enable it to do full justice in the circumstances of the case.
9. For the purposes of the case in hand, the provisions of Rule 7 mentioned above, are not attracted as no such person was present before the Court who was to be either required to give evidence or to produce a document. It is not the case of the parties that the Court by itself had come to the conclusion that the evidence of a person, who 'was not a party and was not a witness of any party to the proceedings, was necessary or it was necessary to call him to produce certain documents which were necessary for the ends of justice. The provisions of the above referred Rule 14 are also not attracted to the circumstances of this case.
10.It is not denied that the defendants had submitted their list of witnesses, like the plaintiffs. The plaintiffs had closed their evidence subject to claiming their right to produce evidence in rebuttal.
The defendants felt the need for calling Assistant Supdt. Revenue Cantonment Board to give statement and produce relevant record, and they submitted application for the said purpose. The clerk of the Cantonment Board had appeared as P.W. and would be able to produce the record, but it was clearly admitted by him that he was not in a position to say any thing about the notice issued to the plaintiffs and about the final position of the approved taxation. As the question of applicability of different rates regarding connection of electricity are involved in this case, and serious interests of the defendants are at stake, while the plaintiffs have claimed that the 10 houses constructed by them are private residential accommodation, and these houses do not fall under the cover of commercial buildings, therefore, the defendants had the right to prove their case through all the available evidence and could request the Court to call witnesses to produce documents and make statement concerning the said 10 houses, which were constructed on the leased property of the Cantonment.
11.In the light of the above, we are of the opinion that the learned original Court erred in not allowing the defendants to call the Assistant Supdt. Revenue Cantonment Board, Abbottabad, alongwith the requisitioned record and make statement accordingly. The learned original Court had the power in this respect to call persons other than those mentioned in the list of witnesses of the parties, but it failed to exercise it in the interest of justice. We, therefore, accept the present civil revision, set aside the impugned order of the learned original Court dated 4.4.2006 and direct the learned original Court to call the Assistant Supdt. Revenue Cantonment Board, Abbottabad as witness of the defendants for producing the requisitioned record and make statement in respect of the same. The respondents/plaintiffs, as of right, my cross examine the said witness.