' This revision petition is directed against the order dated 21-2-1978 passed by the learned Civil Judge, Lahore, whereby he rejected the petitioner's application under Order XVI, rule 1, C. P. C. To allow them to file a list of the witnesses and examine the witnesses named therein.
2. The circumstances under which this application was rejected are that the respondent on 22-10- 1970, filed a suit for the recovery of Rs, 50,341.97 against petitioners. The issues were framed on 30- 4-1973 and some additional issues added on 16-9-1976. The respondent closed his affirmative evidence on 27-6-77 and the case was adjourned to 22-9-1977 for petitioner's evidence on which date the case was again adjourned for 12-11-1977 to enable the petitioners to produce their evidence. On 12-11-1977 too they failed to lead evidence and requested for an adjournment which was granted subject to payment of Rs, 15 as costs and the case fixed for 17-12-1977.
3. It appears that the petitioners did not file list of witnesses as required by Order XVI, rule 1, C. P. C.
However, on 17-12-1977 they moved an application and sought permission of the learned 'trial Court to file the list and examine the witnesses mentioned therein. The reasons assigned by them for not filing this list within time, was that they were unaware of legal complications; the addresses of two witnesses could not be found; these witnesses are Bank employees and the respondent-Bank caused hindrances in the ascertainment of their addresses by the petitioners. The Respondent contested this application and contended that ignorance of law was no excuse, and that there was no cogent ground for condonation of the petitioners' lapse in not tiling the application within time.
4. The learned Civil Judge took the view that the petitioners were represented by a counsel and that therefore, it could not be said that they had no legal assistance. He held that the application did not disclose any sound reason for not submitting the list of witnesses within the statutory period of seven days of framing the issues. Accordingly, he disallowed the application and declined to examine the petitioners' witnesses.
5. The petitioners' learned counsel relying on the heading of Order of XVI, rule 1, C. P. C. Urged that the list of only those witnesses has got to be submitted which a party may have to summon through the Court. His submission was that this provision is not attracted if a party intends to produce the witnesses at his own responsibility. It was urged that the refusal of the learned trial Court to examine the petitioners witnesses exposed them to hardship as they would he deprived of the opportunity to lead evidence. The 'impugned order was also assailed on the ground that the learned trial Court did not exercise its discretion properly. The learned counsel also cited Messrs Crescent Films v. Messrs. Shah Noor Films Ltd. (1) in support of his submissions.
6. The respondents learned counsel, on the other hand contended that the petitioner did not comply with the mandatory provisions of Order XVI, rule 1, C. P. C. And that there was no valid reasons for not filing the list of witnesses within time. He thus canvassed the soundness of the decision arrived at by the learned trial Court.
7. Order XVI, rule 1, C. P. C. Requires that within seven days after the framing of issues, the parties should present in the Court the list of the witnesses whom they propose to call either to give evidence or to produce documents. The Court can permit examination of only those witnesses which are mentioned in the list. Permission to call a witness not included in the list can be allowed by the Court provided good cause is shown for the omission. In the instant case, the reasons given by the petitioners for not filing the list within time are the ignorance of law and the non-availability of the address of the two witnesses. None of these grounds furnish a sufficient cause for the petitioner's omission. Ignorance of law cannot be entertained as a ground for non-compliance with law. As regards the non-availability of the addresses of the witnesses, who are employees of the respondent-Bank, the petitioner could have included their names in the list and requested the Court to give a direction to the respondent to supply their addresses to the petitioner. The petitioners' conduct, as is borne out from the narration of facts given above, smacks of negligence.
I have gone through the precedent cited by their learned counsel, it has no applicability to this case.
8. The construction put on Order XVI, rule I by the learned counsel on the strength of the 'heading' of Order XVI, which runs as under:- "Summoning and attendance of witnesses" is also misplaced. It is well established that the heading and sub-heading of a section cannot either control, or extend the scope of the section, 8 when the language thereof does not suffer from any ambiguity. It is to seen that the language of Order XVI, rule 1 is quite free from ambiguity. This objection of the learned counsel is thus untenable. The ground C that the refusal of their application has e .Posed the petitioner to , grea hardship also does not justify interference. The Courts cannot decline to give
(1) PLD 1978 Lah. 721 effect to the provisions of Statute in order to avoid hardship to one party.
9. The plea that the learned trial Court did not exercise its discretion properly is also ill founded. In the circumstances of the case, the discretion exercised by the learned Court below, in disallowing the application, is not violative of any principle of law. Even otherwise improper exercise of discretion cannot be made a foundation of interference by the High Court in exercise of its revisional jurisdiction. In this respect, reference may be made to Iiadayatullah v. Murad Ali (1), Feroze Din v. Abdul Hamid (2) and Qazi Abdul Kafil v. Abdul Qayyum Khan (3).
10. For all these reasons, I do not find any merit in this revision and dismiss the same with costs.
(1) PLD 1972 SC 69 (2) PLD 1969 Lah. 89
(3) PLD 1969 Pesh. 294