ABDUL WAHEED KHAN, J.---Brief facts necessary for the disposal of the instant petition are that the respondent filed a suit for specific performance wherein after filing of the written statement, issues were settled on 7-4-2010. Thereafter, the respondent/plaintiff filed list of five witnesses. Statements of P. Ws. Nos.1 and 2 were recorded and on 7-10-2010, when the matter was fixed for remaining evidence, the respondent/plaintiff produced Malik Talat Hussain as P.W.3. The petitioners/ defendants raised an objection that since the name of Malik Talat Hussain was not mentioned in the list of witnesses, hence his statement could not be recorded. The said objection was turned down by the Civil Court vide order dated 7-7-2010, hence this petition.
2. The contentions of the counsel for the petitioners are that only those witnesses can be called and produced before the Civil Court whose names are mentioned in the list of witnesses filed under Order' XVI, Rule 1, C.P.C. He further submits that the respondent/plaintiff cannot produce even a private witness at his own. With these submissions, it is prayed that the impugned order be set aside.
3.. Conversely, the contentions of counsel for the respondent are that the respondent/plaintiff can produce a witness at his own and that the order of the Civil Court does not call for any interference.
4. Heard.
5. The name of Malik Talat Hussain was not included in the list witnesses. The respondent/plaintiff did not make a request for calling the said witness through process of the Court. Order XVI Rule 1 and Order XVIII, Rules 2 and 4, C.P.C. Are relevant in the matter, which are reproduced as under:-- "Order XVI Rule 1.---Summons to attend to give evidence or produce document.---(1) Not latter 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 or produce 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)
' Order XVIII Rule 2:---Statement and production of evidence.---(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.
(2) The other party shall then state his and produce his evidence (if any) and may then address the Court generally on the whole case.
(3) The party beginning may then reply generally on the whole case.
' Order XVIII Rule 4:---Witnesses to be examined in open Court.---The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge."
' It has been held in the case reported as "Haji Muhammad Tufail v. Muhammad Iqbal"(2005 M LD 688), as under:-- "Distinction has to be drawn between the terms "call" and "produce" after comparing provision of Order XVI Rule 1, C.P.C. Which those of Order XVIII Rules 2 and 3, C.P.C. Witness in attendance can be examined in accordance with the provisions of Order XVIII Rules 2 and 4. Even after High Court (Lahore) amendment whereby word `produce' had been inserted in Order XVI Rule 1, C.P.C., without amending provisions of Rules 2 and 4 of Order XVIII, C.P.C., and situation would remain the same.
Matter of witnesses present in Court would be governed by Rules 2 and 4 of Order XVIII, C.P.C., which were intact in their original form."
6. In this view of the matter, the objection that Malik Talat Hussain cannot be produced in evidence, as his name is not mentioned the list of witnesses, is misconceived. The Civil Court does not appear to have committed any illegality or irregularity calling for interference by this Court. This petition fails, hence the same is dismissed.