' SHAMEEM HUSSAIN KADRI, ACTG. C. J.-In a civil suit, pending in the Court of Mr. Ahsan Ahmad, Civil Judge, Multan, issues were framed on 23rd January, 1979 and the case was fixed for recording evidence of the parties on 9th April, 1979. The plaintiff is said to have submitted list of witnesses on 9th March, 1979. On the date of hearing objection was raised by the defendant that since the list was not filed within seven days of the framing of the issues as required by Order XVI, rule 1 of the Code of Civil Procedure and no good cause was shown for condonation of delay, it was liable to be rejected. The trial Court rejected the list. The plaintiff went in revision before the District Judge giving certain reasons which did not find favour with him who dismissed the same on 17th November, 1979.
2. The plaintiff has approached this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, throwing challenge to both the orders of the lower Courts. During hearing of the writ petition a question whether refusal to examine witnesses produced or in attendance violates rules 2 and 4 of Order XVIII, C. P. C. Which is distinct from the provisions of Order XVI, rule 1, C. P. C. Relating to the calling of witnesses, was raised. This question was referred to the Full Bench for consideration. Rule 1 of Order XVI, C. P. C. Was substituted by Law Reforms Ordinance XII of 1972, which is reproduced hereunder:- "Summons to attend to give evidence or produce document.-(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 giants such permission, it shall record reasons for so doing.
3. The old rule enabled the parties at any time after the suit was instituted to obtain, on application to the Court or to such officer as it appointed in that behalf, summons to persons whose attendance was required either to give evidence or to produce documents. To that provision there was added a proviso on 15th October, 1932, by the Lahore High Court to the effect that no party who had begun to call his witnesses was to be entitled to obtain process to enforce the attendance of any witness whom process had not been previously issued or to produce any witness not named in the list which was to be filed in Court on or before the date on which the hearing of evidence on his behalf commenced and before the actual commencement of the hearing of such evidence, without an order of the Court made in writing and stating the reason therefor. According to the old provision there was no time limit prescribed for making application to obtain summons, it was open to any time after the institution of the suit, but with the addition of the proviso a limitation was placed that no party which had begun to call witnesses was allowed to obtain process to enforce the attendance of any witness whom process had not been previously issued. That proviso distinctly contemplated filing of list as to the witnesses to be produced in Court on or before the date on which the hearing of evidence on his behalf commenced or before the actual commencement of the hearing of such evidence beyond which list no witness could be produced except with the order of the Court made in writing supported by reasons. There is no joining of issue that with the new enactment of rule 1 of Order XVI, C. P. C., the old rule along with its proviso added by the Lahore High Court stood superseded as it existed on the Statute Book before the law Reforms Ordinance, 1972. It is pertinent to mention here that the heading of Order XVI, C. P. C. Is "Summoning and attendance of witnesses".
4. Order XVIII, C. P. C. Deals with hearing of the suit and examination of witnesses. Rule 2 of the said Order provides" that on the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Rule 4 enjoins upon the Court to record the evidence of witnesses who are in attendance in open Court in the presence of the Judge. The Court is invested with power to recall any witness who has been examined and ask him such questions as it thinks fit. This is provided by rule 17 of the Order.
5. We are taking up rule 1 of Order XVI, C. P. C. First and in so doing we have to refer to 'rule 8 of the Order as well. The best rule for construction or interpretation judicially recognised is plain reading of a provision with due regard to the words used and their ordinary meanin within the context as expressed so as to grasp the true intention of the A Legislature. On analysis of the newly enacted rule one finds that it I mandatory for the parties within seven days after the settlement of issues to present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents. Further a party is not to be permitted to call witnesses beyond the list so submitted except with the permission of the Court to be secured on showing good cause for the omission which permission is to be supported by recorded reasons. Only then the parties are entitled to obtain summons for persons whose attendance is required in Court. It is further provided that no summons are to be issued for service on a person under rule 8 except on an application made in that behalf not later than fourteen days prior to the date fixed for the hearing of the suit for which necessary expenses are to be deposited.
6. Before one embarks upon the task of interpretation or construction it is convenient to look to certain recognised rules of interpretation of statute. In Becke v. Smith (1) Parke, J. Observed :- "In the construction of a Statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the Legislature, to be collected from the Statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience but no further."
' In Sussex Peerage case (2), Tindal, C. J. Observed :- "The only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe mean of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which according to Chief Justice Dyer (Stowe! v. Lord Zouch. Plowden, 369), is "a key to open the minds of the makers of the Act, and the mischiefs which they intended to redress."
' In Seaford Court Estates Ltd. v. Asher (3) at page 164, Denning, L. J. Observed :- "He (the Judge) must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social
(1) 150 E R Ex. D 726 (2) 8 E R 1057 (H L)
(3) (1949) 2 All E L R 155 conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the legislature.
That was clearly laid down (3 Co. Rep. 7b) by the resolution of the Judges (Sir Roger Manwood C. B., and the other barons of the Exchequer) in Heydon's case, and it is the safest guide today."
' Headings to the sections of a Statute are occasionally useful to control the meaning of ambiguous expressions. Martins v. Fowler (1) is referred. In re : Ripon (Highfield) Housing Confirmation Order, 1938 White & Collins v. Minister of Health (2) 'Oxford English Dictionary was consulted for the definition of word 'Park'. The dictionary thus can be referred to for determining the meaning of words not defined in the Statute. In Bibi Gurdevi v. Chaudhri Muhammad Bakhsh and others (3), a Full Bench judgment of this Court Bhide, J. Has made the following observation regarding interpretation of statute : "The words of a statute, when there is a doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject and the object which the Legislature has in view. Their meaning is to be found not so much in strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion in which they are used and the object to be attained. Such construction should be placed on the words as shall suppress the mischief and advance the remedy. Therefore, even when the usual meaning of the 1 anguage falls short of the whole object of the Legislature a more extended meaning may be attributed to the words if they are fairly susceptible of it."
' In Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees' Union, Dacca and others (4) at page 417 the following observations were made : "In the construction of a Statute, it is, of course, at all times permissible to have regard to the state of things existing at the time the Statute was passed, and to the evils which as it appears from its provisions it was designed to remedy.
' It is a cardinal rule of interpretation that when the language used by the Legislature admits of two constructions the Court should not adopt a construction which would lead to an absurdity or obvious injustice but should adopt that construction which appears to be most in accord with reason and justice."
' In M. Abdul Bari and others v. West Pakistan Soil Reclamation Board, Lahore and others (5) while dealing with interpretation of statutes it was held "words defined in one statute used in similar connection in later statute-presumed to carry same meaning in absence of any contrary indication in later statute."
' In Muhammad Ismail and others v. The State (6) observation of their Lordships about interpretation of statute is reproduced as under :- "Interpretation of statutes-Jurisdiction of superior Courts-Can only be taken away by express words and not otherwise-Cassus omissusWords used in statute clear and unambiguous-Cannot be given any
(1) 1926 A C 746 (2) (1939) 2 K B 838
(3) AIR 1943 Lah. 65 (4) PLD 1961 SC 403
(5) PLD 1966 SC 451 (6) PLD 1969 SC 241 meaning other than that which they carry, however, drastic or inconvenient the result may be-Not permissible for Court to rely on oral declaration made at the Bar revealing what the intention of law-maker was-Court, nevertheless, in order to avoid doing Injustice, can give effect to true and patent intention of law-maker by supplying omission.
' In Commissioner of Sales Tax v. Messrs Zelin Ltd., Karachi (1) a Division Bench comprising A. S. Faruqui and Abdul Kadir Shaikh, JJ. While interpreting Sales Tax Act of 1951 observed "An important and fundamental principle of interpretation of statutes is that aistatute is to be read as a whole and attempt is to be made to reconcile the various provisions contained in it although apparently they may seem to be in conflict with each other. It is to be assumed that the Legislature while adding to or amending the statute knew the earlier part of the statute, and it did not intend to create an inter se conflict in its provisions."
' In Messrs Rehman Cotton Factory v. Messrs Nichimen Co. Ltd., Karachi (2) a Division Bench of this Court held "the cardinal rule of construction of the statute is that the words and phrases used in it have to be given their ordinary meaning and are to be construed according to the rules of grammar".
7. Keeping in view the golden principles laid down in the above case-law word 'call' as used in rule 1 of Order XVI, C. P. C., the relevant portion of which is reproduced hereunder, has to be interpreted in its significance : "the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents."
' The word 'call' has not been defined in the Code. The heading of this Order is "summoning and attendance, of witnesses". Under sections 27 and 28 of the Code the Court can issue summons to the defendant to appear and answer the claim of the plaintiff residing within its jurisdiction or defendants residents of another Province. Under section 31 such summons can be issued to persons who can give evidence or to produce ducments or other material objects. The heading of these sections is also "summons and discovery". To call here, therefore, obviously means the call of witnesses under the authority of the Court regarding which a list has to be presented C within seven days of the settlement of issues. In this context the list is a pre-requisite for the official call by the Court which the parties have to file in order to lead evidence in the suit. Following meaning of the words 'call' have been mentioned in note 20 at page 35 of the Oxford New English Dictionary, Volume II, 1893 Edition "to call to account : to summon (one) to render to account, or to answer for conduct". Note 4 thereof is to the following effect : "To summon with a shout, or by a call ; hence to summon, to command or request the attendance a formally or authoritatively.". In Wharton's Law Lexicon, Fourteenth Edition "call of the House" has been given the following meaning : "an imperative summons sent to every member of the House of Commons, on some. Particular occasion, when the sense of the whole House is deemed necessary. Members not attending when their names are called are reported as defaulters, and ordered to attend on another day, when, if they still be absent, and no excuse offered, they may be committed to the custody of the sergeant- at-arms."
(1) PLD 1967 Kar. 341 (2) PLD 1970 Lab. 455 ' Summons have been given the following meanings at page 147 of the Oxford English Dictionary, Volume X "to call together by authority for action or deliberation."
8. Order XVI rule 1, C. P. C. After its reconstitution by the Law Reforms Ordinance, 1972 has been considered in the following cases : ' H. M. Sadiq & Co., Lyallpur v. Volkart (Pak.) Ltd., Karachi through their Attorney PLD 1976 Lah. 1460, Rana Taleh Muhammad Khan and another v. Additional District Judge, Sheikhupura and others PLD 1979 Lah. 145, Sardar Muhammad v. Barkat Ali and others PLD 1979 Lah. 314, K. M. Sadiq v. Volkart (Pak.) Ltd., Karachi 1979 CLC 291, Ghulam Ali and others v. Allah Bakhsh and others 1979 CLC 398, Mannu Khan v. Ata. Muhammad and others 1979 CLC 550, Khushi Muhammad v. Abdul Shakoor and 2 others PLD 1980 B J 41, Salah-ud-Din Bhatti and others v. Habib Bank Ltd., Lahore and others PLD 1980 Lah. 173 and Mian Muhammad Hafiz etc. v. Aziz Ahmad etc. 1980 SCMR 557.
' In the Supreme Court judgment it was held that the question whether the delay in filing application under Order XVI, rule 1 of the Civil Procedure Code was fit to be condoned or not was a question within the discretion of the trial Court. The case-law referred to above deals either with the submission of the list within the prescribed period or the condonation of delay on showing good cause by the Court for omission of the witnesses from the list and proviso to sub-rule 3 places fetters on the powers of the Court to issue summons under rule 8 of this Order beyond fourteen days prior to the date fixed for the hearing of the suit. None of the authorities have dealt with the proposition in hand although different views stringent as well as benevolent have been taken by different Benches for the exercise of the discretion vested in the trial Court under sub-rule
(2) of rule 1 of Order XVI, C. P. C. We have to take into consideration rules 2, 4 and 17 of Order XVIII, C.
P. C. Which have not been repealed by the Law Reforms Ordinance to answer the question which is before us. Rule 2 says that the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. In sub-rule (2) again the word `produce' is used for the evidence of the other party. According to rule 4 the Court has to record the evidence of the witnesses in attendance in open Court. Rule 17 vests the power of recalling the witnesses for re-examination of witnesses already examined. The words 'produce' and `call' are not at all synonymous. Word 'produce' according to note 1 of the Oxford English Dictionary, Volume VIII, has been described to mean "to bring forward, bring forth or out ; to bring into view, to present to view or notice ; to offece for inspection or consideration, Exh. Often used of bringing forward witnesses, as well as evidence, or vouchers, in a Court of law." The word "witnesses in attendance" used in rule 4 of Order XVIII further clarify the position that witnesses who are brought by the parties in Court have to examined by the Court. Now comparing the word `call' used in the ter of summoning cannot equate with word 'produce' and in attendance used I rules 2 and 4 of Order XVIII, C. P. C. Comparing the terms of art used E in Order XVI and Order XVIII it is manifestly clear that the Legislatur only placed fetters for the call of witnesses through Court for which a list has to be submitted within the prescribed period under the present rule. Had the Legislature intended to place similar restrictions on the production of witnesses by the parties without the aid of the Court, the word 'produce should have been inserted in between the words 'proposed to call' and either to give evidence in rule 1 and in-between the word `to call' and witnesses used in sub-rule (2) of Order XVI, C. P. C. Having not done so, the intention of the Legislature is, therefore, absolutely clear that the parties are at liberty to bring witnesses along with them on the day when the case is fixed for evidence and the Court cannot refuse recording of their evidence, according to rule 4 of the said Order. In Mian Karim Bakhsh v. Firm Thakar Dass Ram Lal and others (1) Bhide and Din Muhammad, JJ. While considering former Order XVI, rule 1 of the C. P. C. Observed:- "Order XVI, rule 1 is a technical one and in the absence of any prejudice to either party, Court is not justified in refusing to examine the witnesses on the ground that they were not mentioned in the list. The rule gives the Court discretion to allow witnesses to be examined even if they are not mentioned in the list if it is satisfied that there are sufficient reasons for doing so. The rule should not be applied mechanically."
' Although Order XVIII, C. P. C. Was not the subject of discussion but the ratio seems absolutely clear in favour of allowing the parties to lead evidence in the trial of the suit. None of the counsel for the parties and amicus curiae has cited any judgment where such a question may have been discussed. We are, therefore, left to interpret both the orders in our own humble manner.
9. We have no doubt in our mind that the Law Reforms Ordinance, 1972 altered rule 1 of Order XVI to achieve speedy disposal of cases so as to make it imperative for the parties to file the list of witnesses in Court within seven days of the settlement of issues. Rules 2 and 4 of Order XVIII should have been deleted or amended in the light of the amendment made in rule 1 of Order XVI. The list is, therefore, imperative for summoning of the witnesses by the parties, and in the exercise of discretion vested in them for condoning the delay for good cause under this rule the Courts should exercise the power benevolently. But there is hardly anything which has taken away the right of the parties to produce witnesses in Court of their own and the refusal of the Court to record the statement of witnesses in attendance. The irresistible concluslusion, therefore, would be that the parties will have to comply with the amended rule 1 of Order XVI if they desire to produce their witnesses under the authority of the Court, but they cannot be stopped from producing evidence in Court on the day fixed for evidence. The present situation is a dangerous bar placed on the parties who are made to suffer for non-compliance of the new rule 1 of Order XVI, C. P. C. This gives not only disadvantage to the parties for the dismissal or decretat of the suit but also it provides handle to the trial Court to do away with large number of cases on this technical ground in order to show their greater disposal. Not only counsel for the parties but several counsel sitting in the Court, while the case was argued, complained of this unholy practice adopted in the Province by the trial Courts, in view of the introduction of new rule of Order XVI, C. P. C. We also apprehend that this interpretation may not be abused by the litigants in order to delay the trial of the suits. To avoid this we unequivocally make it clear that the Court will examine only those witnesses who are produced and are in attendance on the day for recording of evidence. Their names may be noted down and only such persons shall be examined and none else whom the parties have neither produced nor summoned in accordance with rule 1 of Order XVI of the Code of Civil Procedure. The question is thus answered accordingly. The case will now go to the Single Bench to decide it on merits in the light of this decision.
10. Before parting with this judgment we appreciate the valuable assistance given to us by learned counsel for the parties and the amicus, curiae in digging up the case-law especially Syed Munir Hussain counsel for the petitioner and Mr. Muhammad Aslam Mian, Advocate, to whom the Bench decided to hear as amicus curiae in addition to Mr. Muhammad Iqbal Malik. We directed the parties to pay Rs, 1000 each to be paid to the two amicus curiae. Mr. Muhammad Aslam Mian, however, stated that he would not like to burden the parties with any consideration for his appearance before the Full Bench as amicus curiae. This gesture of his is commendable. The parties thus will now pay Rs, 500 each so as to be paid to the other amicus curiae. 20-4-1980.
' ABDUL SHAXURUL SALAM, J.-I respectfully agree with the leading judgment of the learned Acting Chief Justice which, if I am permitted to say in all humility, is based on principles and all embracing enunciation of provisions of procedural nature for settlement of disputes and administration of justice between the contending parties. Order XVI, rule 1, headed as "Summoning and attendance of witnesses", requires a party to present in Court a list of witnesses whom it proposes "to call".
Failure debars the party "to call" a witness except with the permission of the Court. There is no doubt that in the context the phrase "propose to call" as pointed out by the learned Acting Chief Justice, means calling through the processes of the Court, and if the list is not presented within the stipulated period, assistance of the Court for calling of witnesses cannot be claimed as a matter of right. It is the discretion of the Court to call on subsequent request. Undoubtedly, the discre tion has to be exercised judicially and benevolently as the learned Acting Chief Justice puts it because the provision is procedural for purposes of settlement of disputes and administration of justice between the parties and not for shutting out their evidence in support of their claims. Then, comes Order XVIII, rule 4 which lays down that "the evidence of the witnesses in attendance shall be taken ...". The rule is imperative. On what hypothesis, evidence of witnesses in attendance can be refused to be recorded and why? What purposes of settlement of dispute and administration of justice can be served by shutting out the evidence which may be vital for doing justice between the parties?
The contention of the learned counsel for the respondents that because a party had not given a list of witnesses proposed to be called under Order XVI, rule 1, therefore, it cannot produce the witness loses sight of the fact that Order XVIII, rule 4 follows Order XVI, rule 1 and not vice versa and the interpretation would also render rule 4 of Order XVIII redundant and it is elementary rule of construction that various provisions of a law should be so construed that there is harmony and no conflict subverting one provision by another. Then, a witness may appear in Court and say he has something very important or material to depose for decision of the case and on his being asked as to what was that, he narrates the same and the Court finds that relevant and material for a just decision. Why should the Court not record the evidence ? There will be no just or lawful reason not to do so.
' The, same thing can happen if instead of a party saying that it produces the witness, the witness says that has appears and wishes to make a statement.
' What will be the difference except change of posture which is neither material nor important.
Therefore, it is quite clear that if a witness appears in Court and is in attendance, his testimony has to be recorded under the mandate of Order XVIII, rule 4 for just decision of a cause. The reference is thus is answered that if a party fails to file a list of witnesses to be called under Order XVI, rule 1, it cannot ask a Court to call a witness as a matter of right.
(1) AIR 1941 Lah. 38 ' If the request is made, it is for the Court to accede to the request or not. Of course, the Court shall exercise the discretion judiciously which carries within itself benevolence without injury to the substantive right of another. Witnesses in attendance shall be examined in accordance with the provisions of Order XVIII, rule 4 as well.
' I also agree with the order as regards payment to the amicus curiae and would like to say that Mr. Muhammad Aslam Mian, Advocate, assisted the Court in his usual self effacing manner and I was'nt surprised to know that he declined the honorarium as it is no part of his nature to pursue acquisition of money but knowledge. I thank him and other learned counsel for their diligent and valuable assistance.
' ABAIDULLAH KHAN, J.-i am in respectful agreement with the leading judgment of the learned Acting Chief Justice and would in all humility add a few words. Amendments effected in the Code of Civil Procedure, including the one in Order XVI, rule 1, as also in the Code of Criminal Procedure by the Law Reforms Ordinance, 1972 (XII of 1972), were primarily aimed at simplifying the procedure of and ensuring more expeditious trial of cases thereby lessening rather than increasing the burden of difficulties and hardships faced by the litigants. It is axiomatic that production of witnesses by a party on its own responsibility cuts down delay to the minimum as compared to summoning the witnesses through the aid of Court which process, besides being more expensive and cumbersome, is apt sometimes to prolong the trial due to non-service of summonses on the witnesses for multifarious reasons. Before amendment of rule 1 of Order XVI, a party was not precluded from producing on its own any of its witnesses, the only thing it was required to do was to cite the names of the witnesses in the list which could be filed, vide the proviso added by this Court to the said rule 1, any time before actual commencement of hearing of evidence on its behalf. As production of witnesses by the parties themselves was the easiest and quickest method of bringing the witnesses before the Court for recording their evidence, it cannot be inferred, keeping in view the fact that the amended procedure was directed towards, inter alia softening the rigour of the previous procedure, that the Legislature intended improving upon this method by demanding filing of list of such witnesses within seven days after settlement of issues, though their evidence was to be taken months or even years thereafter, and visiting any default in this behalf, which in true perspective could be described as no more than of technical nature, with the severe penalty of shutting out their evidence, the consequences of such a harsh action quite often proving disastrous for the fate of a case which might be otherwise sound on merits. Actually it was in the course of receiving evidence of witnesses summoned through Court that the progress of trial of cases was hampered as many a time the parties applied for summoning of witnesses with little margin of time left for the date of hearing of evidence, there being no statutory provision setting a time limit for regulating the steps taken by the parties to call the witnesses through the assistance of Court. To curb this unhealthy practice and secure the presence of witnesses on due dates so as to avoid unnecessary adjournment amendment in rule 1 of Order XVI was made to join the parties to file list o witnesses they proposed to call (through Court) not later than seven days after framing of issues and to move application for issuance of summonses for service upon the witnesses not later than fourteen days prior to the date of hearing. Hence it is obvious, as the leading judgment, for weighty reason, concludes, that the meaning of the word 'call' occurring in sub-rule (1) of Order XVI is restricted in its reference to only those witnesses whose presence before the Court is sought through its process and cannot be extended to envelop in its fold those witnesses whom the parties produce on their own responsibility.