JUDGMENT SAGHEER AHMAD QADRI, J. - Petitioner- defendant Ghulam Rasool has moved this petition against the order dated 06.01.2011 passed by the learned Trial Court whereby on oral prayer made by the learned counsel the respondent-plaintiff, although learned Trial Court did not find any cogent reason, allowed the prayer for summoning of a Bank Manager as witness subject to payment of cost of Rs. 200/-.
2. Learned counsel for the petitioner contends that issues were framed on 18.05.2010 and as no list of witnesses was submitted as required under Order XVI, Rule 1(1)CPC by the respondent-plaintiff and he was granted 11 opportunities to adduce the evidence and on 06.01,2011 statement of the respondent-plaintiff as PW-1 was recorded and at that time the prayer as above-mentioned was made by the learned counsel for the respondent-plaintiff for summoning of Bank Manager and the learned Trial Court passed the impugned order. Further contends that order itself is illegal and nullity in the eye of law as under Order XVI, Rule 1(2), CPC, no doubt a witness can be summoned with the permission of the Court but after showing good cause whose name was not included in the list of witnesses as required to be submitted under Order XVI, Rule 1(1), CPC. While relying on PLD 1980 Lahore 495 Ghulam Murtaza v. Muhammad Ilyas and 3 others, 1999 SCMR 799 Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq, NLR 2005 Civil 109 "Muhammad Aslam Parvez v.
Mst.Waheeda Anwar 2007 YLR 3137 'Nasir Iqbal Butt and another v. Surayya Begum1 through General Power-of- Attorney and 2008 YLR 1871 Muhammad Khalid v. Mst. Mehmooda Khanum and 9 others prayed that impugned order be set aside.
3. On the other hand, learned counsel for the respondent-plaintiff although opposed this petition however, during the arguments on query by Court the reason for summoning the said Bank Manager as witness, stated that cheque in question, on the basis of which suit for recovery under Order XXXVII, Rule, 2 CPC has been filed, has already been exhibited on record and was not able to show reasons for summoning of that witness. However, while relying on 2004 SCMR 1367 'Umar Hayat v. Additional District Judge and others' argued that under Order XVI, Rule 1(2), CPC, an application, can be filed at any stage for summoning of a witness whose name was omitted to be included in the list of witness, earlier submitted.
4. I have heard the learned counsel for the parties and perused the record.
5. There is no cavil with the proposition that learned Trial Court can pass an order for summoning of a witness on prayer of any party while exercising powers under Order XVI, Rule 1(2), CPC at any stage however, one must show a good cause for omission of said witness from the list of witnesses required by to be submitted under Order XVI, Rule 1(1), CPC. No such good reason or cause is shown except an oral request and the learned Trial Court while passing the impugned order has mentioned that although the prayer made by the learned counsel for the respondent-plaintiff was without any justification however, he in the interest of justice was allowing the same subject to payment of cost of Rs. 200/-.
6. In order to appreciate the provisions of Order XVI, Rule 1(1) & (2), CPC the relevant portion thereof is hereby reproduced:- "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 alongwith a] list of witnesses, whom they propose to call either to given 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."
7. If Order XVI, Rule 1(1), CPC ibid is seen, it is mandatory for a party to the suit to submit list of witnesses alongwith certificate of readiness to produce evidence at least not later than* 7 days after framing of issues. If the provision of Rule 1(2) of Order XVI, CPC is seen, the Court is not obliged to call any witness through its process if any list of witnesses as required under Rule 1(1) of Order XVI, CPC is not submitted in the Court. The court, however, if applied by a party at later stage showing a good cause can allow the summoning of any person as witness. The showing of good cause has a condition precedent for exercise of the jurisdiction vested in a Court under Order XVI, Rule 1(2), CPC. If the judgment cited by the learned counsel for the petitioner 1999 SCMR 799 'Mst.
Mussarat Bibi v. Tariq Mehmood, etc.' is seen, their Lordships of the Hon'ble apex Court in para 8 at page 803 were pleased to observe:- "8. We are, therefore, clear in our mind that Order XVI, Rule 1, C P C. Requires that within seven days after framing of issues, the parties should present in the Court the list of witnesses whom they propse 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. Nonetheless 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 petitioner for not filing the list within time are the ignorance of law and the two of the three petitioners being females. None of these grounds furnish a sufficient cause for petitioners' omission. It is settled principle that ignorance of law cannot be entertained as a good ground for non- compliance of law. The petitioners' conduct, as it manifest from the narration of facts given above, smacks of negligence."
8. If the case in hand is seen, no formal application was moved by the respondent-plaintiff for grant of permission to summon the proposed witness through process of law and on mere oral request by the learned counsel for the respondent-plaintiff, the learned Trial Court granted permission to summon the witness i.e. Bank Manager to appear in Court as a witness. It is interesting to note that the learned Trial Court while granting permission for summoning of the witness through, process of Court observed that although no valid justification was given by the respondent-plaintiff even then in the interest of justice the prayer was allowed.
9. As no good cause which is the basic requirement to exercise jurisdiction for allowing any such permission to summon the witness under Order XVI, Rule 1(2), CPC was available nor it was discussed by the learned Trial Court, therefore, the exercise of jurisdiction vested in the Court was not validly and lawfully exercised. Thus while relying on the judgment cited by the learned counsel for the petitioner-defendant, this civil revision is allowed. The impugned order dated 16.01.2011 is hereby set aside been unlawful, however with no order as to costs.