' ATIR MAHMOOD, J.---Through this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioner has challenged the order dated 25-5-2005 passed by the learned Additional District Judge, Sadiqabad whereby revision petition filed by respondent No,2 was accepted subject to payment of Rs,500 as costs with the observation that defendant/respondent is also at liberty to produce any documentary evidence to rebut this additional evidence.
2. The brief facts of the case are that respondent No,2 filed a suit for pre-emption regarding agricultural land in khata No,86 measuring 115 kanals 17 marlas through registered Mutation No, 111 dated 30-9-1999 against the petitioner in the Court of learned Civil Judge, Sadiqabad, The petitioner/defendant filed written statement and contested the suit and out of divergent pleadings of the parties learned trial court framed issues and evidence of the parties was recorded and the petitioner was afforded opportunity to produce his evidence in rebuttal. Then an application under Order XIII, Order XVIII Rule 2 and Order XVI Rule 2 of C.P.C. Was filed for production of additional evidence by way of production of documents through summoning of the witnesses which was dismissed by the learned trial court vide order dated 14-4-2004. Thereafter respondent No,2/plaintiff filed revision against the said order before the learned Additional District Judge, Sadiqabad who accepted the same vide order dated 25-5-2005 subject to payment of Rs,500 as costs with the observation that defendant/respondent is also at liberty to produce any documentary evidence to rebut this additional evidence, hence this writ petition.
3. Learned counsel for the petitioner has contended that order passed by learned Additional District judge, Sadiqabad is illegal, without lawful authority, without jurisdiction, perverse and ultra vires; that respondent No,1 failed to consider the merits of the case, contentions of the parties, case-law of superior courts on the subject; that respondent No,1 exercised jurisdiction not vested in it, the order of the trial court being not amendable to revisional jurisdiction as that could only be attacked under section 105, C.P.C. In appeal against final judgment; that respondent No,1 failed to consider that respondent No,2 had spent more than two years for producing eight witnesses and seven documents of choice; that only reason given in the order of respondent No,1 is denial of justice and technicalities cannot be encouraged; that no right of affirmative evidence being available to respondent No,2 after closure of evidence, petitioner having exhausted her evidence after that, no allowance could be given to respondent No,2 for second right of evidence; that the order of respondent No,1 is one sided, deficient, improper, unwarranted, contrary to law and has resulted in gross injustice to petitioner, therefore, the impugned order dated 25-5-2005 passed by learned Additional District Judge, Sadiqabad is liable to be set-aside. He has relied upon the cases reported as Jhanda through Legal heir v. Muhammad Younas (PLD 1994 Lahore 100), Province of the Punjab through Secretary, Irrigation and Power Department, P.W.D. Secretariat Old Anarkali, Lahore and 3 others v. Ch. Mehraj Din and Co. (2003 CLC 504) and Naseer Ahmad v. District Judge, Multan and 4 others (PLD 1992 Lahore 92).
4. On the other hand, learned counsel for respondent No,2 has controverted the contentions raised by the petitioner and has submitted that the revisional court has rightly exercised the jurisdiction by way of allowing the application under Order XIII Rule 8 Order XVIII Rule 2 and Order XVI Rule 2 of C.P.C. He has further submitted that no prejudice is caused to the petitioner by the impugned order.
He has relied upon (1999 MLD 2295).
5. Arguments of learned counsel for the parties have been heard and I have also gone through the record with their able assistance.
6. It transpires that the application for additional evidence was filed by the petitioner contending therein that the petitioner wants to produce the copies of the documents which are the register record of rights, copy of Aksh-Shajra regarding the suit property, copy of Warabandi Mogha and others on the grounds that all these documents are public documents. He further submitted that for production of the said documents the record keeper of the concerned agency i,e, Patwari Halqa and Zila Dar of Canal Department be summoned. The relevant portion of the application is reproduced as under:-{{URDU TEXT}} ' From the perusal of above contents it is established that respondent No,2-plaintiff did not give any good cause for acceptance of his application at a belated stage. In this regard, I am guided by a landmark judgment given by the Hon'ble Supreme Court of Pakistan reported as (PLD 2013 SC 255).
The relevant portion of the judgment reads as under:-- "The clear language of Rule 1(1), undisputably, stipulates that the parties to a lis are required to furnish the list of witnesses, whom they propose to call either to give evidence or to produce the documents, within seven days of the framing of issues; meaning thereby that the process and the authority of the Court in terms of Order XVI(1), to call and summon the witness by a party, has been made subject to, rather conditional to the list of witnesses which a party is mandated to file in terms thereof; in other words, the power and the machinery of the Court for summoning/calling of the witnesses through the process of Court and law, as is envisaged by certain subsequent relevant rules of Order XVI, C.P.C, can only be invoked if such a list has been provided and not otherwise. From sub-Rule (2), the afore-stated intention of the legislature is fortified and augmented, as a specific prohibition has been placed, preventing a party to call the witnesses and, as per the High Court Amendment-Lahore dated 2-10-2001, even to produce witnesses other than those whose names are mentioned in the list required to be filed under sub-rule (1). Undoubtedly, this is a mandatory provision of law as it entails serious consequences of precluding a party from calling, through aid of law (Court), or even to produce the witnesses if their names do not appear in the requisite list. However, in the same sub-rule (2), a room has been provided to a delinquent party, who either fails to file the list of witnesses at all, or omits a name of the witness (es) therein (if filed) to make up its default and delinquency and ask for the indulgence of the Court to summon and produce the witnesses (es), but only after meeting and fulfilling the command of law, [sub- Rule (2)] i,e,, " after showing good cause (emphasis supplied) for the omission of the said witnesses from the list"; besides, the authority and power of the Court, in this behalf has been regulated, in that, " and if the Court grants such permission, it shall record reasons for so doing (emphasis supplied).
' Coming to the second limb of sub-rule (2), as noted earlier, not only that the litigant party has to show a good cause for having not either furnished the list of witnesses within time or the omission of the name of such witnesses in the list, but a condition has been imposed and a rider has been placed by law on the exercise, of jurisdiction of the Court and discretion in that behalf; in other words the court is not free to grant such permission as per its own whim and caprice and in an arbitrary manner, rather it shall record the reasons for such a permission (emphasis supplied). The condition of recording the reasons obviously is a check on the unbridled and absolute discretion of the Court, which (reasons) should have nexus to the good cause as set out by the delinquent party. At the cost of repetition, it may be mentioned that the court is not vested within unrestricted authority and discretion to pass any whimsical discretion and capricious order it feels like, but obviously the order allowing the permission has to conform to "those reasons which are justifiable in the eyes of law", which reflects the judicial application of mind by the court and the disposal of the request in a judicial manner. It may be pertinent to state here that while disallowing the application of the party for summoning the witnesses, the court is also required to record its reasons."
7. In the present case neither any good cause was shown by the petitioner nor there was any justification as to why the application was filed at such a belated stage. The case of the petitioner is purely covered by the judgment of Hon'ble Supreme Court of Pakistan (supra). In the present case the order of the learned trial court was set aside by the revisional court without assigning any reason. I am again guided by the above judgment of the Hon'ble Supreme Court which also reads as under:-- "In the instant case, the learned Revisional Court while overturning the trial court order has absolutely failed to assign any valid reasons, except invoking the general principle of law that the technicalities of law should not be allowed to thwart the rights of the litigants. I fail to understand as to how the noted principle can be used as a tool to avoid, shun or to defeat the specific rules of law and to save a party from the consequences of its delinquency against the clear command of law on the concept and in terms of legal technicality. It is a well known principle of law that where the law requires an act to be done in a particular manner it has to be done in that manner alone and such dictate of law cannot be termed as a technicality."
8. In view of what has been discussed above, the petition filed by the petitioner/defendant is accepted. The order dated 25-5-2005 passed by the learned Additional District Judge, Sadiqabad is set-aside and the order dated 14-4-2004 passed by the learned trial court is up-held.