' MIAN SAQIB NISAR, J.-The petitioners are the defendants of a suit for declaration initiated by respondent No. 1 against them, perhaps in the year 2003, in which she claimed the ownership of a suit property and also assailed some mutation (mentioned in the plaint). The petitioners contested the suit and joined issues with the respondent; the learned Trial Court recorded evidence of the plaintiff- respondent No. 1 and the case lingered on for the evidence of the petitioners, which on their repeated requests was adjourned time and again. It may be pertinent to mention here that for the purposes of their evidence, the petitioners were even warned of last and final opportunities, which is so envisaged by the orders of the learned Civil Judge seized of the matter dated 22.5.2007 and 15.6.2007. When the case for their evidence was fixed on 3.7.2007, the petitioners moved an application for the summoning of certain witnesses named in the application through the process of Court, which, on account of resistance by respondent No. 1, was dismissed by the learned Trial Court vide order dated 4.9.2007.
2. The petitioners challenged the aforesaid order through a revision petition Which as accepted vicle order dated 27,2.2008 by the learned Additional -District Judge, primarily on the reasoning that no one should be knocked out on technical grounds. Respondent No. 1 has successfully challenged this revisional order before the High Court in its Constitutional jurisdiction and by virtue of the impugned order, while setting aside the decision of the learned Additional District Judge, the learned High Court has restored the order of the learned Civil Judge dated 4.9.2007. Hence this petition.
3. At the very outset, the learned counsel for respondent No. 1 has apprised us that during the pendency of the noted petition before this Court, the suit of the said respondent has been decreed by the Trial Court; the appeal filed .By the petitioners against such judgment and decree has also failed/. These decisions have been assailed by the petitioners before the learned High Court in, revision which is pending, therefore, the instant petition in the above circumstances has been rendered infructuous. Confronted with the above, though the afore-stated outcome of the suit/appeal is admitted by the petitioners' counsel, yet he wants to argue the case on merits. It is submitted by the petitioners' learned counsel that the witnesses sought to be-summoned by them were officials; they were supposed to bring official record alongwith them qua which there was no possibility of any fabrication and was quite germane for the purposes of resolving the real controversy between the parties. It is also argued that for the purposes of dispensing justice, technicalities of law should not be allowed to impede and prejudice 4he rights of the litigants.
Learned counsel has further contended that the provisions of Order XVl, Rule 1, CPC are not mandatory in nature, rather these are directory and in appropriate cases, the Court has the authority and the power to summon the witnesses whose names are not mentioned in the list of witnesses and this is a case in which such authority should have been exercised, as was rightly done by the learned Additional District Judge in the matter. He lastly argued that the revisional Court had allowed the application (for summoning of witnesses) of the petitioners for valid reasons, therefore, such order should not have been interfered with by the learned High Court in exercise of its Constitutional jurisdiction in view of the law laid down in Noor Muhammad v. Sanvar Khan and 2 others (PLD 1985 SC 131) and Habib Ullah v. Azmqt Ullah (PLD 2007 SC 271).
4. Heard. It is an admitted position that the names of the witnesses sought to be summoned were not there in the list of the witnesses required to be filed by the petitioners in terms of Order XVl, Rule 1, CPC, rather their counsel is not sure if such a list at all was ever filed by them within seven days of the framing of the issues by the learned Trial Court. Be that as it may, in order to resolve the proposition(s) involved in the matter and to enunciate the true import and purport of Order XVl, Rule 1, CPC it seems expedient to reproduce the same which reads as below:- "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 give evidence or to produce documents (emphasis supplied).
(2) A party shall not be permitted to call or produce (emphasis supplied) 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) On application to the Court or such officer as it appoints in this behalf, the parties may obtain summons for persons whose attendance is required in Court: ' Provided that no summons shall be issued for service on a person under rule 8 unless an application in that behalf is made not later than . Fourteen days prior to the date fixed for the hearing of the suit and the necessary expenses for the summoning of such person are deposited.
' High Court Amendment.- Lahore[1] 1...........
2. In sub-rule (2) add "or produce" in-between the words "call" and "witnesses"." (Note:-By virtue of the noted amendment it is envisaged that the word 'produce' has been added to the said rule).
' 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(l), 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 XVl, CPC, 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 g 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 makeup 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)".
5. The question(s) which may therefore further arise for an answer would be, what is a "Good cause"? And how the power should be exercised by the Court? However, before dilating upon the above, I feel it expedient to briefly state the object of the provisions of the noted rule in the context of the amendments brought therein over the period: The original Rule 1 of Order XVl reads as "At any time after the suit is instituted, the parties may obtain, on application to the Court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents" However, sub-rules (1)(2) and (3) were substituted by a Law Reforms Ordinance (Ordinance XII of 1972) whereby requirement of list was mandated and made compulsory by virtue of sub-rules (1)(2). It was further commanded by sub-rule (2) that a party shall not be permitted to call a witness, through the mechanism of law and/or by the process of Court, if the name of such witness does not appear in the list so filed. Not only that, on 2.10.2001 sub-rule (2) was further amended by a Lahore High Court-Amendment and the word "produced" as mentioned above was added thereto.
6. The obvious query therefore should be, as to why the legislature from time to time has been introducing the changes in the said rule, the answer is quite straightforward: firstly, that no one should be taken by surprise in the course of the trial of the suit and the parties, before the commencement of the trial, must be conscious, aware and should be fully prepared, as to what kind of evidence is expected to be given by the witness(es) of the opposite side, so that they can make necessary preparations for the cross-examination etc. And secondly; to prevent the concoction and fabrication of the evidence and to makeup blatant omission(s) by the litigants during the course of the trial, -meaning thereby to bind the parties, to such genuine evidence which was/is available to them at the time of the start of the trial, so that they should not subsequently avail stock and fudged witness(es) to make up, their case(s) and the deficiencies.
Thus, the interpretation of the noted provisions of law is required to be made in the context of its object as stated above.
7. Be that as it may, before proceeding with the matter further in the context of answering the propositions herein involved and for the purposes of interpretation of sub-rules (1) and (2) of Order XVl, CPC and for ^elucidation of the said question, I would also like to resort to another expression i.b. "sufficient cause" which has been used-by the legislature in the provisions of Civil Procedure Code, specially in Order 9, Rule 9 and Order 9, Rule 13 as against the word "good cause" used in Rule 7 of the said Order (9 of CPC); besides Order 41, Rule 19 thereof. Rules 9 and 13 ibid pertains to setting aside of an ex-parte proceedings or the decree on the behest of defendant(s) of a case who must establish a 'sufficient cause' while under Rule 7 supra, the plaintiff whose suit has been dismissed for non-prosecution, should show a good cause for seeking its restoration. The distinction between the two expressions shall be made in the succeeding part of the judgment.
Anyhow, with reference to the proposition(s) in hand, XVI(2) can validly be bifurcated into two parts, firstly, it has been made incumbent upon a party, rather a duty has been cast upon the delinquent party to show 'good cause' for omission to file the list of witnesses or the name of a particular witness and the second part is meant to regulate the power, authority and the discretion of the Court in relation to the grant of permission.
8. For the purpose of comprehending the first part, it shall be relevant to ascertain the true meaning of the expression 'good cause' which according to Black's Law Dictionary Eighth Edition means "A legally sufficient reason. Good cause is often the burden placed on a litigant (usu. By Court rule or order) to show why a request should be granted or an action excused - Also termed good cause shown; just cause; lawful cause; sufficient cause". Whereas, according to the said dictionary "sufficient cause" bears the same meaning as "good cause" and thus both the words can be held to be considerably analogue and interchangeable expressions, yet as per the precedent law, 'good cause' has been construed in wider terms than 'sufficient cause'[2]. Though no hard and fast, and absolute criteria can be set forth, as benchmark, to test, if a case of omission to file the list of witnesses or a name in such list is on account of 'good cause', as it depends upon the facts of each case, however, the party in default has to show a legally sufficient reason, why a request should be granted or the inaction/omission Should be excused, in other words, the Judicial conscious of the Court should be satisfied with justifiable reasons. In any case, a party in default cannot, as a matter of right or as a matter of course without assigning or establishing any good cause for the omission, ask for the calling/summoning or even to produce the witness(es) only on account of a lame excuse/reason and a bald assertion that, it shall be in the interest of justice and/or it shall facilitate the Court in deciding the matter.
9. Applying the afore-stated test to the instant case it shall be seen that good cause is absolutely lacking in this D matter, as in the application for the summoning of witnesses filed by the petitioner it is stated.- {{URDU TEXT}} ' This hardly is a reason why the names of the witnesses were not given within the time provided by law in terms of Order XVl, rule 1, CPC and/ or it constitutes a good cause within the purview of sub- rule (2) as interpreted.
10. 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 the 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 E for such a permission (emphasis supplied).
The condition of recording the reasons obviously is a check of 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 with an unrestricted authority and discretion to pass any whimsical direction 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.
11. 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.
12. The argument of the learned counsel for the petitioner that the order of the Revisional Court could not be interfered in the Constitutional jurisdiction, because a Court having the jurisdiction to decide the matter, has the jurisdiction to decide it rightly or wrongly, and reliance having been placed upon the two judgments noted above; suffice it to say that in the noted dicta, the provisions of Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 have not been taken into consideration, which reads as:-- "4- (1) To enjoy the protection of law and to be treated in accordance with law - is the inalienable right of every citizen wherever he may be, and of every other person for the time being within - Pakistan.
(2) In particular
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and *
(c) no person shall be compelled to do that which the law does not require him to do. "
' Article 4 (ibid) mandates that it is the inalienable right of every citizen to enjoy the protection of law arid to be treated in accordance with law and thus where an order has been passed H by any forum or Court, including the Revisional Court, which is patently illegal and violative of law, especially the express provisions and the spirit of law, which (order) if allowed to stay intact tantamounts to, and shall cause serious breach to the legal rights of the litigants and shall cause prejudice to them, the learned High Court in appropriate cases while exercising its Constitutional jurisdiction can rectify the illegality and violation of law, and undo the harm caused by the order of such (revisional) Court. It may be relevant to state here, that in the olden days, an arbiter or an adjudicator appointed under the decree of an Emperor, King, Mahraja or Sultan had the empowerment to decide, the disputes between the two parties, according to the charter, the mandate and the rules provided to him by the authority making his appointment, and also as per the customs, practice, social and moral norms and values of the society, and by the use of his vision and wisdom, but in the modern times, where the Courts are established under the law; where there are codified laws, in the sphere of both the "substantive" and the "procedural" laws, which enunciate the rights and duties of the citizens, are meant to create a discipline in the process of adjudication of a lis between the parties, which (laws) over the period of time has been developed and interpreted by the superior Courts of the country, by virtue whereof the meaning, the purpose, the object of various laws have been defined, enunciated, explained, and elucidated, it is not open and permissible for the Courts to pass any kind of order, the Courts like, solely on the basis of its (Courts) vision and wisdom, rather the Courts are bound and obligated to render decisions in accordance with law and the law alone. Arid in any case the Courts have absolutely no authority to act, in a capricious, whimsical and arbitrary manner, and/or by violating the provisions of law. In support of the above view, reliance can be placed on Utility Store Corporation of Pakistan Limited v.
Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447), in which pronouncement, one of the honourable Judges of the Bench, in his additional note, while considering the earlier decision of the Court in Muhammad Hussain Munir v. Sikandar (PLD 1974 SC 139), held as under: "I cannot agree with the learned Judge in the High Court. The view of the learned Judge that this Court has ruled that even if the order of a Tribunal is wrong in . Law, the High Ciirt still cannot intervene in exercise of its Constitutional .Jurisdiction is not justified and I feel that the v judgments of this Court in the cases of Muhammad Hussain Munir (PLD 1974 S.C. 139) and Zulfiqar Khan Awan (1974 S.C.M.R. 530) have not been, read in their proper context. It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribuhal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly ' but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction."
' In Qamar-ud-Din v. Muhammad Din and others (PLD 2001 SC 518), it has been held "merely because revision was decided, it would not be itself be a bar for an aggrieved party to writ for seeking complete justice in appropriate cases, which of course will depend upon the sole merits of each case". In the case reported as Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905), it has been held:- "Lastly, attending to the plea propounded by the learned counsel for the appellants that the Constitutional jurisdiction could not be exercised by the learned High Court for interfering in the revisional order of the Addl. District and Sessions Judge. Suffice it to say that on account of the provisions of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, it is an alienable right of every citizen to enjoy the equal protection of law and to be treated in accordance with law, therefore, if a revisional Court has passed an order which does not qualify the test of Article 4 ibid and suffer from a patent error, of fact, such as non-reading/misreading of the facts on the record or has committed a grave illegality in applying the correct law,1 Such as the error of misapplication and non-application of correct law, thus being an illegality of a sheer nature can always be rectified by the High Court while exercising its Constitutional jurisdiction under Article 199 , as no bar/limitation in this behalf on the exercise of Constitutional jurisdiction of the High Court either emanates from the plain reading of the Article or can be read into it."
' The judgment supra enunciates the correct legal position, thus it is obvious and clear that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly and in violation of the law, and the revisional Court is no exception to this rule. This is the mandate of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 and we are H not persuaded if there is any specific bar on the learned High Courts, that while exercising its authority in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, no interference can be made in the revisional orders. It should in fact be left to the High Courts to decide in which cases die interference is warranted, as it is the matter about the regulation of High Court's jurisdiction, obviously on the touchstone of the grounds laid down and the parameters set - forth in Article 199 of the Constitution. Therefore the argument of the learned counsel for the petitioners that the High Court cannot interfere in the revisional orders has no force, which is hereby discarded.
' As the petitioners have dragged the respondent unnecessarily upto this Court, which is a clear abuse of law and misuse of the process of the Court, therefore we are inclined to impose cost of Rs.
25,000/- (twenty-five thousand) upon the petitioners as a special cost to be paid to the respondent, which hardly shall be an adequate compensation to him, for the agony he has suffered throughout. Resultantly, this petition has no merit, which is hereby dismissed with the cost noted above. High Court Upheld/.