CH. MUHAMMAD TARIQ, J. --- This civil revision has been directed against the concurrent orders dated 9.5.2009 and 2.3.2009 passed by the learned Additional District Judge, Rawalpindi and the learned Civil Judge, Rawalpindi respectively.
2. Brief facts of the case are that the petitioners- plaintiffs filed a suit for declaration and mandatory injunction which was contested by the respondents-defendants. After framing of issues on 10.5.2006, the learned Trial Court directed the parties to file the list of witnesses within seven days and the learned Civil Judge called for the evidence of the petitioners-plaintiffs. The case for the purpose was - adjourned for a number of times till 17.1.2009 when the present petitioners filed an application requesting therein to allow to produce witnesses but this application was turned down by the learned Trial Court vide order dated 2.3.2009. The petitioner, instead of filing a civil revision against the order of the learned Trial Court, whereby the, learned Trial Court had refused to entertain the list of witnesses. The petitioners filed an appeal which was also dismissed on 9.5.2009 by the learned Additional District Judge, Rawalpindi. Hence this civil revision.
3. Learned counsel for the petitioners contends that both the learned lower Courts have exercised the jurisdiction arbitrarily resulting into the miscarriage of justice. Learned counsel further contends that both the learned lower Courts have committed material irregularities by ignoring the fact that the presence of witnesses and marking thereof in the order sheet is sufficient to settle the requirement of list of witnesses as there remains no formal requirement of application and the list of witnesses is already on the Court's record, when the witnesses were marked present by the Court: He further contends that non-exercising of jurisdiction tantamount to illegal exercise of jurisdiction which is a jurisdictional error to be redressed through the revision petition. Learned counsel further contends that the civil revision be allowed, the impugned orders passed by both the learned Courts below be set aside and the petitioner be allowed to produce their witnesses before the Court.
4. On the other hand, the learned counsel for the respondents has vehemently opposed this civil revision and has contended that a second' civil revision is not maintainable under the* law. Further contends that the petitioners were obliged under the law to assail the order of the learned Trial Court/in civil revision before the first Appellate Court but instead of filing the civil revision, the petitioners filed an appeal which was neither maintainable nor proceedable under the law and after dismissal of the appeal, the petitioners instead of filing writ petition have filed the civil revision which is again not proceedable, hence this civil revision is liable to be dismissed on this score alone.
5. Learned counsel for the respondents has further contended that the issues were framed on 10.5.2006 and the parties were directed to subrnit .List of witnesses within seven days. The case remained adjourned for the evidence of the plaintiffs till 17.1.2009 when the petitioner-plaintiff after lapse of about quarter to three years filed the list of witnesses with male fide intention just to linger on the process of law, therefore, the civil revision is not maintainable even on merits.
6. Arguments heard. Record perused.
7. Order XVI, Rule 1, C.P.C. Deals with the summons to attend, to give evidence or produce document which provides that not later than seven days after the settlement of issues, the parties shall present in Court a certificate of readiness to produce evidence, alongwith a list of witnesses whom they propose to call or produce either to give evidence or to produce documents.
8. In case, the required list is not furnished before the Court within the prescribed period and subsequently, if the request of a party to produce the list of witnesses is refused by the learned Trial Court, the remedy would be to assail the order of the learned Trial Court in civil revision under Section 115 of C.P.C. And not in shape of appeal, an appeal could only be filed if it is specifically provided in a statute. An appeal is not a substitute of civil revision. Therefore, the contention of the learned counsel for the petitioners that instead of filing civil revision, the petitioners had assailed the order of the learned Trial Court in appeal which is not warranted under the law. Further, when the appeal of the petitioners was dismissed by the first Appellate Court, learned counsel for the petitioners filed the instant civil revision which is again not maintainable because the jurisdiction could not be conferred with the desire to a party or with the consent of more parties.
9. The contentions of the learned counsel for the petitioners that the matter shall be decided on merits and the technicalities should be ignored as the technicalities shall not come in the way of justice is misconceived because it is not a question of technicalities rather the learned counsel for the petitioners has acted against the mandatory provisions of law. So, when the appeal ultra vires the law was filed, thereafter all the subsequent proceedings became void ab initio because if the foundation of an act is wrong, the entire structure raised on it will be liable to be demolished.
10. The other aspect of this case is that the issues were framed on 10.5.2006 and the parties were directed to file the list of witnesses within seven days. The petitioners-plaintiffs remained mum till 17.1.2009 when for the first time, they filed an application before the learned Trial Court for permission to furnish the list of witnesses under Order XVI, Rule 1, C.P.C. The conduct of the petitioners-plaintiffs is nothing but to frustrate the proceedings.
11. The result of the above discussion is that the civil revision is devoid of merit which is dismissed.
Civil revision .