'MUHAMMAD DAUD KHAN, J.--- This Regular First Appeal is directed against the judgment and decree dated 09-09-2011 of learned Civil Judge/Illaqa Qazi-Ill Dir Lower, whereby the suit filed by respondents for recovery of 145,000 Saudi Riyal or its equivalent in Pakistani currency, was decreed in their favour.
2. Brief but necessary facts giving rise to the instant appeal are that the respondents instituted a suit against the appellants for the recovery of 145,000 Saudi Riyal or its equivalent in Pakistani currency. As per the plaint, one Gul Amin Khan (late) --- the predecessor-in-interest of the appellants --- owed 90,000 and 80,000 Saudi Riyal to respondents # I and 2 respectively, as loan.
The parties had executed a deed on 07-03-2007 regarding the disputed loan money. Vide a deed dated 26-04-2007, late Gul Amin Khan had allegedly paid 25,000 Saudi Riyal out of the total loan, making 145,000 Saudi Riyal as the total outstanding amount. After a short span of time, late Gul Amin Khan passed away. After the death of Gul Amin Khan, the plaintiffs demanded the said outstanding amount from his LRs but they refused.
3. The appellants contested the suit. They raised several legal and factual objections in their written statement. The trial court framed 09 issues. Evidence of the parties was recorded. On conclusion of the trial, a decree as prayed for was passed in favour of the respondents vide the impugned judgment and decree.
4. I have heard arguments of counsel for the parties and perused the record.
5. Without going into the merits of the case, two main questions cropped up before this Court: 'First, whether the evidence of a witness whose name does not appear in the list of witnesses submitted by a party, could be recorded? Second, whether the suit is bad for non-joinder of a necessary party?
6. The relevant facts germane to the first question are that at the trial, the appellants wanted to record the testimony of one Javed Ahmad Khan, as DW2. As DW2 started recording his testimony, the respondents objected that the name of the witness did not appear in the list of witnesses of the appellants. Sustaining the objection, the learned trial Judge did not continue with recording the statement of DW2. The remaining evidence, however, was 'recorded and the case decided on the strength of the evidence available on the record.
7. In order to answer the first question, relevant provisions of the applicable law need to be examined are: Order XVI, Rule 1 and Order XVIII, Rules 2 and 4, C.P.C. For the sake of convenience, they are reproduced in sequence as under: "Order XVI Rule 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, 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 XVIN 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 case and produce his evidence Of 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." (Underlining is mine.)
8. A witness brought by a party in the Court couldn't be refused simply for the reason that name of such witness was not mentioned in the list of witnesses. The word "call" in Rule 1 of Order XVI, the words "produce" and "attendance" in Rules 2 and 4 of Order XVIII and the words "witnesses in attendance" in Rule 4 of Order XVIII, C.P.C., are clear inasmuch as witnesses brought by the parties in the Court have to be examined by the Court. Order XVI, Rule 1, C.P.C. Is a technical one and in the absence of any prejudice to either party, a Court is not justified in refusing to examine the witnesses on the ground that they were not mentioned in the list of witnesses. The rule gives the Court discretion to allow witnesses to be examined even if they are not mentioned in the list. The Court, however, must be satisfied that the party, who wants to produce the witnesses, has shown good cause. Further, the Court has to record reasons if it allows the examination of such witnesses.
It follows that the rule should not be applied mechanically. Similarly, there is hardly anything which has taken away the right of the parties to produce and record the statements of the witnesses in attendance before the Court. To conclude, while the parties have to comply with Rule 1 of Order XVI, C.P.C., they can't be stopped from producing witnesses who are in attendance provided that the party producing them is able to show good cause.
9. In the present case, the learned trial Court has simply applied Rule 1 of Order XVI, and missed the provisions of Rules 2 and 4 of Order XVIII, CPC. As was held in Ghulam Murtaza v. Muhammad Ilyas (PLD 1980 Lahore 495 (at page 501), the words "to call" used in Rule 1 of Order XVI, C.P.C., "obviously means the call of witnesses under the authority of the Court regarding which a list has to be presented within seven days of the settlement of issues." In other words, submission of a list of witnesses is necessary if a party wants its witnesses to be summoned through Court. At the hearing of a suit, a party may, under Rule 2 of Order XVIII, C.P.C., produce evidence in support of the issues which he is bound to prove. In the above cited case, the words "call" and "produce" used in Rule 1, Order XVI and Rule 2, Order XVIII, C.P.C., respectively, have been compared. In that case, hon'ble Justice Shameem Hussain Kadri, Acting Chief Justice of Lahore Court (as then his lordship was), after comparing the dictionary meanings of the words "call" and "produce", has observed: 'Now comparing the word, 'call' used in the term of summoning cannot equate with word 'produce' and in attendance used in rules 2 and 4 of Order XVIII, C.P.C. Comparing the terms of art used in Order XVI and Order XVIII, it is manifestly clear that the Legislature only placed fetters for the call of witnesses through Court for which a list has to be submitted within the prescribed period under the present rule.. .The irresistible conclusion, therefore, would be that the parties will 'have to comply with the amended rule 1 of Order XVI if they desire to produce witnesses under the authority of the Court, but they cannot be stopped from producing evidence in Court on the day fixed for evidence.
'It is worth mentioning that the interpretation of the word 'call made in the above mentioned case was approved by the Supreme Court in Ahmad Khan v. Nazir Ahmad and 3 other (1999 SC MR 803).
10. Coining to the second question, the record of the case shows that father of late Gul Amin Khan is alive. This is reflected in the statement of DW 1. The name of father of late Gul Amin Khan has been stated as Sultan. Being one of the legal heirs of late Gul Amin Khan, Sultant (his father) has not been arrayed as a necessary party. The suit is thus bad for non-joinder of necessary, parties. The learned trial Court has overlooked I this material aspect of the case.
11. Similarly, the findings of the learned trial Court on issue # 04 regarding jurisdiction are not speaking and well-reasoned. It is a settled principle of law that every us before a Court of law and even a quasi-judicial authority must be disposed of with a well-reasoned judgment. Obviously, it is a well-reasoned judgment that serves the purpose of justice.
12. Without touching other merits of the case, lest it may prejudice the case of either party, I allow the instant appeal. Consequently, the impugned judgment and decree are set aside and the to the learned trial Court with the directions to implead Sultan, the father of Gul Amin Khan (late) in the panel of defendants, give the appellants an opportunity to record the evidence of Javed Ahmad Khan as DW2, and decide the case afresh on merits preferably within two months of the receipt of the record.