MUHAMMAD ALAM, J.---This is a writ petition, whereby, petitioners have challenged order dated 30/05/2015 of the learned Additional District Judge Gilgit, passed in Revision Petition No.26/2014.
Petitioners have sought the following remedy through this petition:-- "It is therefore humbly prayed that by accepting this writ petition, the impugned order dated 30/5/2015 may kindly be set aside holding the same without jurisdiction to meet the ends of justice."
2. Petitioners/defendants contested suit, Civil Suit No.132/2006, in the court of Civil Judge First Class Gilgit. During the trial proceedings, respondents/ plaintiffs filed an application seeking two remedies, first under Order XIII, Rules 1, 2 read with section 151, C.P.C. and the second under Order XVI, Rules 1, 2 read with section 151, C.P.C.. Respondents/plaintiffs sought filing of some documents in the file of Civil Suit through the first remedy and sought notices to three PWs, named therein, through the second remedy. Through order dated 12-11-2014, learned trial court dismissed the said petition. Feeling aggrieved from the same, respondents/ plaintiffs filed Civil Revision No.26/2014 in the first appellate court, who accepted the revision petition through order dated 30-05-2015.
Petitioners filed this petition against the said impugned order.
3. We have thoughtfully considered arguments advanced by the learned counsel for parties.
Learned counsel for petitioners/defendants failed to point out any defect in the impugned order to the extent of grant of first remedy of the respondents/plaintiffs, i.e., filing of attested copies of the documents in the file of Civil Suit. However, as far as the second part of the impugned judgment, to the extent of summoning of the evidence, we are in agreement with the submission of the learned counsel for petitioner that the learned trial court did not apply his judicious mind while allowing the application under Order XVI, Rule 1, C.P.C. Before entering into their factual controversy between the parties, we consider it appropriate and just to reproduce the provisions of Rules 1, 2 and 3 of Order 16, C.P.C. hereunder:-- Order XVI SUMMONING AND ATTENDANCE OF WITNESSES
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 witnesses other than those contained in the said list, except with the permission of the Court and after 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.]
2. Expenses of witness to be paid into Court on applying for summons.
(1) The party applying for a summons shall, before the summons is granted and within a period to be fixed, pay into Court such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned in passing to and from the Court in which he is required to attend, and for one day's attendance.
Experts. -- (2) In the beginning the amount of payable under this rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case.
Scale of expenses. -- (3) Where the Court is subordinate to a High Court, regard shall be had, in fixing the scale of such expenses, to any rules made in that behalf
3. Tender of expenses to witness.
The sum so paid into Court shall be tendered to the person summoned, at the time of serving the summons, if it can be served personally.
From plain perusal of the above rules, it is evident that a party cannot be allowed to call or produce witness through court other than those whose names does not appear in the list of witnesses and that also subject to the conditions or pre-requisites laid down in the above rules. To produce or call a witness whose name does not appear in the list of witnesses, either of the parties to the case are required to satisfy the court as to the circumstances that genuinely existed and genuinely prevented such party from writing name of such witness or witnesses in the said list. It is also mandatory on the Court to record reasons for allowing a party to produce such witnesses. From perusal of impugned order, it is evident that the trial court omitted to record such reasons. Learned trial court has given the ground of acceptance of petition under Order XVI, Rule 2, C.P.C. that allowing the same is not detrimental to the rights of the respondents. In our opinion, the same ground is never a ground of acceptance of the said petition.
4. As a result of above discussion, we hold that PWs cannot be summoned through the Court while respondents are free to file the documents in the file of Civil Suit. Anyhow, learned trial court has the powers to give any findings on such documents at the relevant stage of appraisal of evidence of parties. Petition partly accepted. This file be consigned to record.