ORDER SAGHEER AHMED QADRI, J.--Petitioner-plaintiff filed a suit for recovery of damages against respondents. Out of the pleadings of the parties issues were initially framed on 21-3-2006, however, being dissatisfied with the issues matter went up to High Court and under the direction learned trial court framed. The additional issues on 11-10-2006. Petitioner-plaintiff at the time of first framing of the issues i.e. On 21-3-2006 submitted its list of witnesses on 28-3-2006 within the stipulated period provided under Order XVI, Rule 1, C.P.C. After framing of the issues, the petitioner-plaintiff entered into examination of the witnesses. Subsequently, an application under Order XVI Rule 1, C.P.C. Was moved on 17-5-2010 for summoning of the witnesses as mentioned in the list of witnesses provided as mentioned above. This application was resisted by the respondents-defendants whereby it was objected that as the application has been submitted in violation of proviso annexed to Order XVI, Rule 1(3), C.P.C., therefore, the witnesses could not be summoned. Learned trial Court after hearing the parties vide impugned order dated 1-6-2010 refused to issue summons against the witnesses.
Feeling aggrieved petitioner-plaintiff has preferred this revision petition.
2. Learned counsel for the petitioner-plaintiff contends that the refusal order by the learned trial Court whereby witnesses were refused to be summoned being only on the technical ground is without any lawful justification. Learned counsel argued that as the names of all the witnesses have already been mentioned in the list of witnesses submitted within time, therefore, Order XVI, Rule 1(3), C.P.C. As contained in proviso is not applicable in the present circumstances; that earlier when the petitioner-plaintiffs evidence was started, it could not be completed due to non- availability of the counsel for the respondents and now when petitioner-plaintiff moved application for summoning of the witnesses, it was refused only on technicalities. Learned counsel while relying on 2005 MLD 688 (Haji Muhammad Tufail v. Muhammad Iqbal), PLD 1956 Lahore 30 (Abdul Hakeem and another v. The Federation of Pakistan), 2002 YLR 2476 (NBP through President, Head Office, I.I.
Chundarigar Road, Karachi and 3 others v. Punjab Provincial Co-operative Bank. Limited), 2008 SCMR 116 (Syed Ibne Hussain v. Federation of Pakistan through Secretary Establishment Division and others) and 1972 SCMR 534 (Mst. Bashir Bibi v. Aminuddin and 9 others) prayed that the impugned order be set aside and application moved by the petitioner-plaintiff be allowed with the direction to learned trial Court to summon the witnesses mentioned in the list of witnesses already submitted on record.
3. On the other hand, learned counsel for the respondents-defendants has vehemently opposed this revision petition on the ground that it is specifically provided in proviso annexed to Order XVI, Rule 1(3), C.P.C. That summon shall not be issued for service on a person if an application in this behalf is not made latter than 14 days prior to the date fixed for hearing.
Learned counsel argued that in this case as the additional issues were framed on 11-10-2006 and evidence for the first time was called on 28-2-2009, therefore, application for summoning of the witnesses must have been filed 14 clays prior to that date of hearing. As it has not been done, therefore, the court was not obliged to summon the witnesses and the impugned order is perfectly lawful and justified. Prayed that this revision petition be dismissed.
4. I have considered the contentions addressed by learned counsel for the parties.
5. In order to appreciate it is beneficial to reproduce here the provisions of Order XVI, C.P.C.
"SUMMONING AND ATTENDANCE OF WITNESSES:--
(1) 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 [certificate of readiness to produce evidence, along with 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 grants such permission, it shall record reasons for so doing.
(3) On application the Court or such officer as it appoints in this behalf, the parties may obtain summons for persons whose attendance is required in Court: Provided that no summons shall be issued for service on a person under rule 8 unless an application in that behalf is made not later than fourteen days prior to the date fixed for the hearing of the suit and the necessary expenses for the summoning of such person are deposited. ] "
It is provided under Sub-Rule (1) of Rule 1 of the order that the parties must submit list of witnesses within seven days of the settlements of issues along with the certificate of readiness to produce the evidence. Under Sub-Rule (2) it is provided that a party shall not be permitted to call and produce witnesses other than those contained in said list except with the permission of the court and if any witness is not named in said list then the discretion lies with the court to summon any witness if a good cause is shown by a party for non-inclusion of the name of any witness in the said list but the discretion lies with the court to refuse or allow any such request subject to the facts and circumstances of each and every case.
6. It is an admitted fact that the list of witnesses was submitted by the petitioner-plaintiff within seven days of the framing of issues. However, due to pendency of certain applications the fixation of the case for hearing i.e. Recording of the evidence remained postponed till 28-2-2009. It is provided in proviso annexed to Order XVI Rule 1(1)(3), C.P.C. That no summon shall be issued for the service of a person under Rule 8 unless an application in that behalf is made not latter than 14 days prior to the date fixed for the hearing of the suit and necessary expenses for summoning of such person are deposited. It is worth mentioning here that vide Lahore High Court's Amendments inserted on 15-10-1932 a proviso was also added which reads as under:-- "Provided that no party who has begun to call his witnesses shall be entitled to obtain process to enforce the attendance of any witness against whom process has not previously issued, or to produce any witness not named in a list, which must be filed in Court on or before the date on which the hearing of evidence on his behalf commences and before the actual commencement of the hearing of such evidence without an order of the Court made in writing and stating the reasons therefor."
7. The learned trial Court on the basis of above mentioned proviso, as it was agitated on behalf of the respondents that as the plaintiff's evidence has already been commenced, therefore, at this stage as for the first time when the case was fixed for recording of the evidence/hearing, no summonses were got issued, therefore, this application for issuance of the summonses to the witnesses is not maintainable. No-doubt it is provided that process for issuance of summons and for that purpose application must have been filed 14 days prior to the first date of hearing but this rule is not absolute. It is consistent practice of this Court and consensus of the judgments so far passed by the Hon'ble superior Courts of the Country that technicalities should not be allowed to thwart the ends of justice. Even in so many cases wherein the name of a witness was not cited in the list of witnesses, which is mandatory to be submitted within seven days of the framing of issues, if court comes to the conclusion that the evidence of that witness is necessary to decide the case on merits, such like witnesses are also allowed to be summoned or examined. Here in this case list of witnesses has already been submitted and the only objection is raised that 14 days prior to the fixation of first date of hearing the application was not moved for summoning of the witnesses in violation of proviso annexed to Order XVI, Rule 1(3), C.P.C. In a judgment cited as AIR 1927 Lahore 281 (Munshi and others v. Mt. Karmon) it was observed as under:-- "A party is even entitled to summon witnesses long after the time fixed by the Court for this purpose and, though the application is a belated one still the summons should issue. But if the witnesses are not served for the hearing the Court should refuse to adjourn further for their attendance."
This view is further supported by AIR 1926 Calcutta 364(1) (Kandru HaIdar v. Taraprasanna Roy Chowdhuri and others) wherein a learned Division Bench has observed as under:-- "The Court has except in cases of manifest abuse of procedure, no discretion to refuse an application for summons. The circumstance that the application was made at a late stage is no ground for refusing it though the Court may, when the case is heard, refuse to adjourn the hearing."
This view has further been adopted by the Hon'ble Supreme Court of Pakistan in a case reported as 1972 SCMR 534 (Mst. Bashir Bibi v. Aminuddin and 9 others) whereby their lordships observed as under:-- "We have not been able to discover any provision in the Code of Civil Procedure whereunder the responsibility can be put on a party to produce its evidence on pain of losing its right to produce that evidence. Even in a case where a party undertakes to produce its on evidence but then reports its inability to do so and applies for process of the Court for the attendance of its witnesses, there is no sanction in law for refusing such a request. The Court may, in the exercise of its inherent powers to prevent abuse of the process of the Court, decline to accede to such a request where it is found that the party is deliberately seeking to prolong the case to the grave disadvantage of the other side, and that the evidence sought to be adduced has no material bearing on the decision of the case."
8. Another aspect which is earlier discussed that procedures are provided/ enacted to facilitate not to thwart the justice. Technicalities are normally to be avoided in administration of justice because basic duty of the court is to administer justice on the basis of the evidence led by the parties according to the facts and circumstances of each and every case. In IF this reference guidance can be sought from a judgment cited as 2008 SCMR 1159 (Syed Ibne Hussain v. Federation of Pakistan through Secretary, Establishment Division and others) wherein their Lordships while relying on PLD 1963 SC 382 (Imtiaz Ahmad v. Ghulam Ali and others) observed as under:- "The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided, unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our on is based may be to a certain extent technical, but we are not to take from that system its defects. Any system, which by giving effect to the form and not to the substance, defeats substantive rights, is defective to that extent. The ideal must always be a. System that gives to every person what is his due."
9. In the light of above discussion, this civil revision is allowed, the impugned order dated 1-6-2010 passed by the learned trial Court is hereby set aside and application moved by the petitioner- plaintiff for issuance of summons to the witnesses is allowed.
10. Before parting with this order it is to be observed that courts should not act as a silent spectator while conducting the trials. In this case the plaintiff- petitioner has submitted a list of witnesses consisting names of 180 witnesses. It is no-doubt for a party to choose how to prove its case and it is also for a party to choose the witnesses to be produced for that purpose, however, at the same time responsibility lies on the Court that before allowing any party to get record the statement of any witness or issuance of any summon for attendance as such the statement of that witness either being examined or applied for to be summoned is necessary for discharging onus of issues on a party. It is for the trial Court to decide as such and then allow any party to get recorded the statement of a witness or any such summon be issued. In this case as list of 180 witnesses is annexed, therefore, while allowing the application moved by the petitioner-plaintiff for summoning of the witnesses at the same time it is directed to ,the learned trial Court to look into this aspect and issue summons only against those witnesses who are just essential and necessary to discharge the onus placed on plaintiff-petitioner. Revision petition is allowed with no order as to the costs.