SHAKEEL AHMAD, J.--Through this single judgment, I intend to decide the instant writ petition as well as the connected writ petition bearing No.469-P/2016, as common questions of law and facts are involved therein, through which, the petitioners seek the following relief:-- "It is, therefore, most humbly prayed that on acceptance of the instant writ petition the impugned judgment/ order dated 07.11.2016 of the learned Additional Sessions Judge-VIII, Peshawar may kindly be declared without lawful authority, without jurisdiction, illegal and as such be set aside, or any other order deemed proper and in favour of petitioners may also be passed".
2. Brief facts of the case are that against the ex-parte judgment and decree dated 29.04.1987 in favour of Gul Habib petitioner-plaintiff, the present respondents viz. the legal heirs of Amlook Khan, filed an application under Order IX Rule 13 read with Section 12(2), C.P.C. for setting aside the aforesaid judgment and decree. During trial proceedings, the respondents-defendants filed another application for recording statement of one Faiz Muhammad, the bailiff, as a Court witness.
The present petitioners contested the said application by filing written reply. The learned Trial Court, after hearing both the parties, dismissed the same vide order dated 14.06.2016. Not contented therewith, the respondents-defendants filed civil revision before the learned Additional District Judge-VIII, Peshawar, which was accepted vide judgment / order dated 07.11.2016. Being dissatisfied, the petitioners have come to this Court through the instant writ petition.
3. The learned counsel appearing on behalf of the petitioner argued that Faiz Muhammad was appearing before the learned trial Court as witness, which is reflected from different order sheets, therefore, he cannot be called for as court witness.
4. As against that the learned counsel representing the respondents argued hat the said witness Faiz Muhammad was neither cited as witness in the list of witnesses furnished by the respondents nor called for as witness of the respondents. He next argued that he had been appearing as a witness on behalf of Civil Nazir. He lastly argued that the said Faiz Muhammad was serving as bailiff of the court, who had allegedly served summon upon the respondents, therefore it was essential to produce him as court witness, giving the parties a chance to cross examine him and prayed for dismissal of the writ petition.
5. Arguments heard and record perused.
6. Perusal of the record reveals that it is not denied that the respondents had submitted their list of witnesses, but Faiz Muhammad has not been cited as witness in the said list. It was alleged in the petition filed under section 12(2), C.P.C. that the summon of the respondents was allegedly taken by the said Faiz Muhammad as he was serving as bailiff at that time.
7. In order to properly appreciate arguments of the learned counsel for the parties, it will be advantageous to discuss the provisions of Rules 1, 7 and 14 of Order XVI of the Civil Procedure Code, 1908.
8. The parties are legally bound to present in Court a list of witnesses whom they propose to call either to give evidence or to produce document. No witness will be called by a Court if no list of witnesses in accordance with sub-rule (1) of rule 1 mentioned above is submitted by the concerned party. It is binding on the concerned parties under the mentioned law to either produce list of witnesses to be called under the authority of the Court or deprive themselves of the evidence of such persons whose names are not provided to the Court in a list. The failure of party to provide a list of witnesses to a Court at all deprives that party of a chance to request, later on, the Court that some persons be called as witnesses of that party. A party who does not obey the law and complies with the requirements of law is not entitled to get the support of law to the extent of his own negligence, indolence and failure.
9. It has clearly been provided in sub-rule (2) of rule 1 that a party shall not be permitted to call witnesses other than those named in his list of witnesses, except with the permission of the Court, and showing good cause for the omission of the said witnesses from the said list. The submission of a list of witnesses in accordance with the provisions of sub-rule (1) of Rule 1 of Order XVI mentioned above is a condition precedent for a further request for calling other persons as witnesses with the permission of the Court. The provisions of sub-rule (2) will not be applicable at all when the conditions of the above referred sub-rule (1) are not complied with. Further explanation of the two sub-rules is that the Court shall record reasons for granting permission when such permission is granted and it would check the good cause shown by the concerned party for the omission of the said witnesses from his list of witnesses.
10. Rule 7 of the said order, however, empowers and authorizes the Court to require any person present in Court to give evidence or to produce any document then and there in his possession or power. This power can be used by the Court suo motu or on the application or request of a party.
The provisions of rule 7 are empowering an authorizing in nature, so that the Court may have the authority and power in order to meet the ends of justice.
11. Rule 14 of the said Order is applicable to a situation when such persons are not present before the Court. But, if the Court at any time 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, such a Court may of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document. This rule is also authorizing and empowering the Court in order to enable it to do complete justice in the circumstances of the case.
12. For the purposes of the case in hand, the provisions of Rule 7, mentioned above are attracted as the said Faiz Muhammad was appearing on behalf of Civil Nazir and under this rule, the court is empowered to direct a person present in court to give deposition even though he may not have been named in the list of witnesses, submitted under Order XVI Rule 1, C.P.C.
13. In the light of the above, I am of the opinion that the learned trial Court erred in not allowing the respondents to call Faiz Muhammad bailiff as witness, and the learned revisional court has rightly set aside the impugned order of the learned trial Court and directed to call him as court witness.
The impugned judgment/order of the revisional court is based on proper appreciation of law, which needs no interference. Both the writ petitions being bereft of merit are dismissed.