Facts giving rise to the present petition are that Mst. Mubashar Batool/Respondent No. 4 filed a suit for declaration and perpetual injunction against the petitioner and Respondent No. 3 in the Court of Civil Judge 1st Class Chichawatni District Sahiwal. The suit was contested by the petitioner and Respondent No. 1. Out of the pleadings of the parties, learned trial Court framed the issues on 22.07.2008 with the direction to the parties to submit the list of witnesses and certificate of readiness within seven days. On 09.06.2009 an application for submission of list of witnesses was moved by the petitioner. Respondents No. 3 and 4 filed written reply of the application. After hearing arguments of both the sides, learned trial Court allowed application subject to payment of cost of Rs. 1,000/-. Feeling aggrieved with the said order, Respondent No. 4 filed civil revision which was accepted by the learned Addl. District Judge Chechawatni vide his order dated 22.03.2010 with the result that the application filed by the petitioner and Respondent No. 3 under Order XVI, Rules 1 & 2 CPC for submission of list of witnesses stood dismissed.
2. Learned counsel for the petitioner contends that the learned trial Court accepted the application for interim injunction of Respondent No. 4. Against the said order, the petitioner filed appeal in the Court of learned Addl. District Judge and due to this reason, she could not submit list of witnesses before the trial Court within seven days. She, therefore, moved an application with the list of witnesses before the trial Court with the request to allow her to submit the same. Respondent No. 4 contested this application. At that time, the evidence of the defendants had not been recorded. It is argued that all procedures are meant for advancement of cause of justice and not for use and purpose of entrapping the litigant. Therefore, the trial Court vide order dated 04.12.2009 rightly accepted the application for permission to file the list of witnesses subject to payment of Rs. 1,000/- as cost. Against this order, Respondent No. 4 filed revision petition which can only be filed against the order when the order is based on illegality or irregularity. Provisions of Order XVI, Rules 1 & 2 CPC are directory in nature. The petitioner has given good cause in her application. The petitioner is residing at 15 Yarrow Close, Rochdale, Lanca Shire OL 11 Ist United Kingdom and she has executed special power of attorney in favour of Ghulam Hussain for pursuing the cases. The petitioner being lady and living outside the country also have good/sufficient cause to file the application. Valuable rights of the petitioner are involved in the above mentioned suit. It is, therefore, prayed that the writ petition be accepted, impugned order dated 22.03.2010 passed by the learned Addl. District Judge Chechawatni be set-aside and the order dated 04.12.2009 passed by the learned Civil Judge Ist Class Chechawatni be restored.
In support of his contention, learned counsel for the petitioner has relied upon PLD 1980 Lahore 435, 2003 MLD 1524 (Lahore) and 1994 SCMR 771.
3. On the other hand, learned counsel for Respondent No. 4 strongly opposed this writ.
In support of his contention, learned counsel for Respondent No. 4 relied upon 1989 CLC 42 (Karachi), PLD 1989 Karachi 257, 1991 SCMR 970 and 1999 SCMR 799.
4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record.
5. In Rule 1 of Order XVI by sub-rule (2) C.P.C, discretion has been left with the Court to condone any omission in respect of witnesses which includes omission in respect of filing the list of witnesses.
The only condition on which discretion is to be exercised is that good cause should be, shown by the party who invoke the discretionary jurisdiction of the Court. It seems unfair on the part of the Court to shut the case of one or other party merely because a step in proceedings has been delayed on account of inadvertent omission or bona fide cause. Ordinarily discretion has to be exercised for the benefit of the litigant party unless it is proved that party at fault is guilty of contumacious conduct or negligence not excusable reasonably. It is, therefore, misconceived that sub-rule (1) is mandatory and its non-compliance will result in closing the case of a party in matter of evidence.
6. It is a matter of record that the petitioner/Perveen Akhtar is a lady who is defending this suit filed by Respondent No. 4/Mst. Mubashar Batool against her and Respondent No. 3. She had shifted to Lanca Shire United Kingdom and pursuing this case through her special attorney Ghulam Hussain.
In these circumstances her contention that the trial Court accepted the application for interim injunction of Respondent No. 4 and she preferred appeal against the said order before the learned Addl. District Judge due to which she could not submit the list of witnesses in the Court within prescribed time of seven days can be treated as good cause. It is also a fact that at the time of filing of application for submission of list of witnesses, evidence of the defendants had not been recorded.
In view of above, I am of the view that reasonable explanation/good cause has been shown and no prejudice has been caused to the opposite party in its defence and the Court not unduly inconvenienced the party's evidence should not be shut out for its failure to file the list within seven days of the framing of issues. Law favours adjudication of disputes on merits and contested trial after giving full opportunity to the parties to prove their case. Technical knock-out is an exception and not a rule. All procedures are meant for advancement of cause of justice and are not for use and purpose of entrapping litigant to blind corner. The Court should be liberal in permitting a party to call the witness not enlisted as per law laid down in 'Bashi! Ahmad vs. Fazal Din' 1994 CLC 1920, 2003 MLD 1524 Lahore and 1994 SCMR 771.
7. In view of what has been discussed above, I accept this writ petition, set-aside the impugned order dated 22.3.2010 passed by the learned Addl. District Judge Chechawatni and restore the order dated 4.12.2009 passed by Civil Judge 1st Class Chechawatni with no order as to costs.