Order on C.M.A. No,7503 of 2012 ' NADEEM AKHTAR, J.---This order shall dispose of the application bearing C.M.A. No,7503 of 2012 filed by the plaintiffs under Order XVI Rule 1 C.P.C. Read with Order XVII Rule 21 C.P.C., praying that the two persons mentioned therein may he summoned to produce the complete record of the immovable properties described therein, and to give evidence as the plaintiffs' witnesses.
2. The plaintiffs have filed this Suit against the private defendants For administration, partition, rendition of accounts and declaration in respect of the properties left by late Abdullah J. Memo.
The two official defendants are the Tappedar Chuhar Jamali where one of the suit properties is situated, and the Province of Sindh. The plaintiffs have prayed for a judgment and decree for administration/partition of the properties left by the deceased, including the beatnik properties, for appointment of an administrator / commissioner for such purpose, and for their legitimate share out of the said properties. A preliminary decree was passed on 14-10-2008, whereby the Nazir was appointed as the administrator in respect of the properties mentioned at serial numbers (i) to (v),
(x) and (xi) in Schedule 'A' available at page 43, with the direction to sell the same through public auction. The legal heirs of the deceased were given the right to match the highest bid by depositing 10% of the amount of the offer with the Nazir.
3. Defendants Nos.1, 3, 3(a) to 3(g) and 4 filed their written statements to contest the Suit. On 11-10- 2010, six issues were framed by the Court with the consent of the learned counsel appearing for the parties. Thereafter, the matter proceeded before the Commissioner appointed by the Court for recording the evidence of the parties. The plaintiffs led their evidence and then closed their side.
Through the instant application, the plaintiffs have prayed that the Tappedar Chuhar Jamali, District Thatta, and the Tappedar Deh Narathal, Gadap, Karachi, be summoned through the Deputy District Officers (Revenue) concerned, to produce the complete record of the immovable properties described in prayer 2(6) of the plaint, and to give evidence regarding possession, cultivation by Muqatadar, and payment of dhal/taxes etc. In respect thereof.
4. Mr. Imran Ahmed, learned counsel for the plaintiffs, submitted that both the proposed witnesses, as Government officials are the custodians of public/official documents and record. He further submitted that public/official documents and record can be summoned by the Court and the public functionaries holding/maintaining such public/official documents and record can be summoned to produce the same and to give evidence in relation thereto at any stage of the trial in order to resolve the actual controversy in a proper manner. He urged that, since the issue of became ownership is involved in this Suit, the evidence of both the Appears/proposed witnesses is necessary for bringing the truth before the Court as to who is in possession and who cultivates the lands and pays the dhal etc. To the Government. He further urged that the need for filing the instant application arose in view of the evidence of the attorney of private defendants, who avoided answering many material questions. According to the learned counsel, the most important reason for summoning the proposed witnesses is that all the original title documents of the properties in question are in the possession of the private defendants, and as such there is no other way to enable the plaintiffs to prove their legitimate claim.
5. In support of his submissions, the learned counsel for the plaintiffs relied upon the case of Anwar Ahmad v. Mst. Names Bano through legal heirs, 2005 SCMR 152, wherein the Hon'ble Supremt Court was pleased to hold that non-filing of documents with the plaint has never been considered fatal in view of the provisions of Order XIII Rule 2, C.P.C. Which empowers the court to receive documentary evidence during the trial. He also relied upon the case of Messrs Trading Corporation of Pakistan v. Messrs Rahat and company, 2005 CLC 1305, wherein a learned Division Bench of this Court held inter alia that the rules and procedure are intended to advance justice rather than to obstruct it; and the object of Order XIII Rule 2, C.P.C. Is to exclude forged documents and expedite the trial, but it is never intended to apply the said provision to deny a party to produce documents, which were otherwise relevant in resolving the controversy between the parties, on the ground that such an application has been made at a belated stage.
6. On the Other hand, Agha Zafar Ahmed, learned counsel for the private defendants, submitted that none of the proposed witnesses can be summoned as their names were not mentioned by the plaintiffs in their list of witnesses. He further submitted that the justification given by the plaintiffs cannot be treated as a "good cause" in terms of Order XVI Rule 1(2), C.P.C., and without showing a good cause; the plaintiffs cannot be allowed to summon the proposed witnesses and/or to produce additional evidence. It was urged by the learned counsel that a specific issue regarding became ownership was framed and the plaintiffs had full opportunity to lead evidence in support of their claim, but they failed in discharging their burden to prove the said issue. Therefore, the instant application should not be allowed at this belated stage. The learned counsel for the private defendants relied upon the case of Mst. Musarrai Bibi and 2 others v. Tariq Mahmood Tani, 1999 SCMR 799, wherein it was held by the Hon'ble Supreme Court that only those witnesses could be called or produced in evidence regarding whom a list had been presented within seven days of settlement of issues.
7. Before considering the submissions made by the learned counsel for the parties, I would like to discuss a few reported authorities of the Hon'ble Supreme Court and one reported Division Bench case of the Lahore High Court. In the case of Umar Havat v. Additional District Judge and others, 2004 SCMR 1367, the application for summoning a witness maintaining the relevant record filed after a considerable delay of 3-1/2 years, was allowed by the trial court and the order was maintained by the appellate court as well as the High Court. The Hon'ble Supreme Court also maintained the order. In Mian Muhammad Haflz and others v. Aziz Ahmad and others, 1980 SCMR 557, it was held by the Hon'ble Supreme Court that the question whether delay in filing an application under Order XVI, Rule 1, C.P.C. Was fit to be condoned or not, was a question within the discretion of the trial court, and the trial court had the power to condone the delay and allow the application. In Australasia Bank Ltd. v. Messrs Mangora Textile Industries, Swat and others 1981 SCMR 150 the Hon'ble Supreme Court was pleased to hold that if a reasonable explanation is given and no prejudice is caused to the opposite party in its defense, and the Court is 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 the issues. In Mst. Hajan Nawab Bibi v. Additional District Judge, Lahore and 3 others PLD 1993 Lahore 492, a learned Division Bench of the Lahore High Court held that the trial court had rightly exercised the discretion in allowing the petitioner to produce additional evidence as the documents sought to be produced were certified copies of the public record and were essential for the just decision of the case; an application for permission to produce additional evidence can be filed at any stage; it was in the interest of justice that the petitioner be allowed to bring on record the documents which were otherwise of unimpeachable authenticity for resolving the controversy ; and this would also obviate the possibility of remand of the case by the appellate court.
8. Another relevant case is Musarat Bano and others v. Additional District Judge, Lahore and others, 2010 MLD 1656, which was a case under the Fatal Accidents Act, 1855, wherein the defendants filed an application under Order XVI, Rules 1 and 2, C.P.C. For summoning the Police Official from the relevant Police Station as a witness, on the plea that the file of the accident's record could only be produced through him. Despite the fact that the defendant had failed to mention the Police Official in the list of his witnesses and had also not relied upon the Police file in the list under Order VII Rule 14, C.P.C., the application was allowed by the trial court. The order was maintained by the Lahore High Court in the Constitutional Petition filed by the plaintiff against the said order, and it was held that technicalities should not be allowed to defeat the ends of justice, and in the interest of justice the parties should be permitted to place on record all the available evidence proving or defending their case. In Bashir Ahmed v. Fazal Din, 1994 CLC 1920, it was held by the Lahore High Court that provisions of Order XVI, Rule 1 C.P.C., which permits a party to call with the permission of the court witnesses not included in the list of witnesses, have to be liberally construed to enable the parties to produce their evidence and to save them from technical knockout.
9. The main questions involved in this case are the summoning of such persons as witnesses by the plaintiffs whose names were not mentioned in the list of witnesses, and the delay in filing the instant application for summoning the proposed witnesses. Sub-Rule (1) of Rule 1 of Order XVI, C.P.C.
Provides that not later than seven days after the settlement of issues, the parties shall present in Court a certificate of their readiness to produce evidence along with a list of witnesses whom they propose to call either to give evidence or to produce documents. A perusal of Sub-Rule (2) of this Rule shows that a party may be permitted by the Court to call such persons as witnesses whose names are not mentioned in the list of witnesses, provided a good cause is shown by such party for the omission of not including the names of such persons in the list of witnesses. It is, therefore, clear that persons other than those mentioned in the list of witnesses can also be produced as witnesses if the Court is satisfied that the party requiring their production has shown a good cause for not including their names in the list of witnesses. The main object of this specific provision appears to be that entire such evidence, that is relevant and necessary for ascertaining the truth and for adjudicating upon the issues involved completely and effectually, should come before the Court at any stage of the trial before passing the judgment. Rule 14 of Order XVI, C.P.C. Is another example of this intention of the law makers, which provides that where at any time the court thinks it necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit, it may on its own motion cause such person to be summoned as a witness to give evidence or to produce any document in his possession, and may examine him as a witness or require him to produce such document.
10. In view of the authorities of the Hon'ble Supreme Court and the decisions rendered by the learned Division Benches of this Court and the Lahore High Court discussed above, such public/official record which is otherwise of unimpeachable authenticity for resolving the controversy and is essential for the just decision of the case, should be allowed to be produced at any stage of the trial; the party's evidence should not be shut out for its failure to file the list within seven days of the framing of the issues ; and, the trial court has the power to exercise its discretion, to condone the delay and to allow the application in this regard. In the present case, it is an admitted position that the two persons/Appears whom the plaintiffs want to produce as witnesses to give evidence and to produce the official record, are official functionaries who are holding and maintaining the official record of the two properties that are being claimed by the plaintiffs as became properties. It is also an admitted position that the plaintiffs are not seeking production of any such document that is not an official document. Therefore, in my humble opinion no prejudice will be caused to the private defendants if the said official record is allowed to be produced to enable the Court not only to evaluate the claim of the plaintiffs, but also to decide completely and effectually the issue regarding the became ownership. In fact, production of the official record would facilitate the Court in reaching a just and equitable decision, and would also rule out the possibility of remanding the case at a later stage. I am also of the view that production of the said official record would be beneficial for the private defendants as well and they will not be prejudiced, as the burden to prove the became ownership would still remain on the plaintiffs even if they produce the said official record.
11. The objections of the learned counsel for the private defendants that the plaintiffs should not be allowed to produce the proposed witnesses as their names were not mentioned in their list of witnesses, a specific issue regarding became ownership was framed, and the plaintiffs had full opportunity to lead evidence in support of their claim, are without any force. Had this been the intention of the legislature, the trial court would not have been vested with the discretionary power under Sub-Rule (2) of Rule 1 of Order XVI, C.P.C. To permit the parties, on showing a good cause by them for not including in the list of witnesses the names of the proposed witnesses, to call them as witnesses despite the fact that their names were not mentioned in the list of witnesses. It has been consistently held by the Superior Courts that the provisions of Order XVI, Rule 1, C.P.C., which permits a party to call with the permission of the court witnesses not included in the list of witnesses, have to be liberally construed to enable the parties to produce their C evidence and to save them from technical knockout; and technicalities should not be allowed to defeat the ends of justice, and in the interest of justice the parties should be permitted to place on record all the available evidence proving or defending their case. The justification given by the plaintiffs that all the original title documents of the properties in question are in the possession of the private defendants and as such there is no other way to enable them to prove their legitimate claim, is a sufficient ground and a good cause for exercising the discretion in their favor.
' In view of the above discussion, C.M.A. No,7503 of 2012 filed by the plaintiffs is allowed as prayed.