' ABDUL LATIF KHAN, J.---Through the instant appeal, the appellant has called in question the order dated 11-3-2008 of learned Civil Judge-I, D.I. Khan vide which his suit was dismissed under Order XVI, Rule 1, C.P.C.
2. Precise facts giving rise to the instant appeal are that the appellant filed a suit against the respondents/defendants for damages to the tune of. Rs,100,00,000 in respect of assault, battery and false imprisonment.
3. The suit was contested by the respondents/defendants by submitting their written statement. On 9-1-2008, the learned trial Court framed issues from the divergent pleadings of the parties and the parties were directed to file their lists of witnesses and diet money for official witnesses (if any) within seven days and then summonses were to be issued to official witnesses of plaintiff for 11-3- 2008. However, on 11-3-2008, the suit of the appellant was dismissed under Order XVI, Rule 1, C.P.C.
4. Aggrieved of the order dated 11-3-2008, the appellant preferred a revision petition. On 25-4-2009 the appellant submitted an application for withdrawal of the revision petition to file appctl before this Court. The learned Additional District Judge-VI, D.I. Khan vide order dated 25-4-2009 allowed the application and dismissed the revision petition as withdrawn, hence the instant appeal.
5. The learned counsel for the appellant contended that the trial Court has wrongly passed the impugned order without affording opportunity to the appellant for filing list of official witnesses and diet money in compliance with the earlier orders passed by the Court. He contended that the impugned order is harsh in nature and the Court was obliged to afford opportunity to the appellant, despite any fault on his part, if any, in the interest of justice.
6. Conversely, the learned D.A.G contended that the instant appeal is hopelessly time barred and the impugned order has been passed strictly in accordance with law and needs no interference.
7. We have given our anxious thought to the arguments of learned counsel for the parties and perused the record with their valuable assistance.
8. In order to understand the controversy involved in the matter, it is expedient to reproduce below the provisions of Order XVI, Rule 1, C.P.C.:-- "(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, although 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 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."
9. It is pertinent to mention that the N.-W.F.P. Amendment substituted the following for rule 1:-- "1. (1) On such date as the Court may appoint and not later than 30 days after the settlement of issues, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents.
(2) They 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; the Court granting such permission 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 summonses for persons whose attendance is required in Court."
' The amendment provided for a period of thirty days after the settlement of issues for production of list of witnesses and to call the witnesses either to give evidence or produce documents. If we apply this amendment to the instant case, the appellant was directed on 9-1-2008 and the time of more than two months was given to him, so, he was supposed to deposit the same within thirty days, if in any case, unable to do within a period of seven days, but he remained reluctant, rather opted to absent himself instead of filing the required list and depositing diet money as directed by the Court. In the case of Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq (1999 SCM R 799) the Honourable Supreme Court observed that:- "We are, therefore, clear in our mind that Order XVI, Rule 1, C.P.C. Requires that within seven days after the framing of issues, the parties should present in the Court the list of the witnesses whom they propose 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 rall a witness not included in the list can be allowed by the Court provided good cause is shown for the omission."
' The august Supreme Court has laid down, while interpreting Order XVI, Rule 1, C.P.C, that the parties should be present in the Court and present list of witnesses and deposit the diet money to call their official witnesses for giving evidence or the production of .Documents. It has been laid down that only those witnesses would be allowed to depose who are included in the list of witnesses and those officials for whom summonses were given after deposit of diet money, as directed by the Court, within prescribed time. The conduct of the appellant, as is manifest from the narration of facts, smacks of negligence.
10. In the instant case, the lis was posted for 5-12-2007 for framing of issues vide order sheet No,15 dated 12-11-2007. On 3-12-2007, due to the leave of the Presiding Officer, the case was adjourned to 9-1-2008. Formal issues were framed from the divergent pleadings of the parties and the parties were directed to file list of witnesses and diet money for official witnesses, if any, within seven days and then summonses were ordered to be issued for official witnesses and the case was listed for 11-3-2008. The perusal of the order sheet reveals that plaintiff was ordered on 9-1-2008 to deposit diet money and list of witnesses within seven days i.e, A he was supposed to file on or before 16-1- 2008 and on 11-3-2008, he did not appear before the Court, neither submitted list of witnesses nor deposited diet money for official witnesses, therefore: in such eventuality, the trial Court was left with no option but to invoke the provisions of Order XVI, Rule 1, C.P.C.
11. The impugned order was passed on 11-3-2008, which is an appealable order as the suit was dismissed, against which a revision petition was filed by the appellant before the learned District Court on 15-3-2008 who returned the same to the appellant on 25-4-2009, due to lack of jurisdiction. The instant appeal was filed on 3-7-2009, with a gap of more than two months. Leaving aside the period consumed in presentation of proceedings before a wrong forum in good faith as provided under section 14 of the Limitation Act, 1908 and computing the period of limitation consumed before wrong forum and excluding the same, the conduct of the appellant is negligent, for the reason that after the return of proceedings on 25-4-2009, he kept mum for a period of more than two months, for which there is no explanation as to why after the return of proceedings, he did not file the appeal within reasonable time before this Court. This shows the lukewarm attitude of the appellant towards instant proceedings. Even otherwise, there is no substance in appeal and it is being lingered on, on one pretext or the other.
12. For the reasons mentioned above, the instant appeal being without substance is hereby dismissed, leaving the parties to bear their own costs.