Rasaal Hasan Syed, J. The petitioner through this Constitutiona l petition impugns order dated 13.6.2018 of the learned Addl. District Judge, Sheikhupura whereby the revision petition filed by the respondent No.1 against order dated 23.4.2018 was accepted, the order was set aside, in result the application for permission to file list of witnesses was dismissed.
2. Respondent No.1 filed a suit for specific performance of an agreement of sale against the petitioner , claiming that vide agreement dated 21.5.2009 the petitioner allegedly agreed to sell land measuring 33 kanals 16 marlas for a consideration of Rs.12,00,000/- and received Rs.6,45,000/- as earnest money . The suit was instituted against the petitioner through Safia Akhtar , who was claimed to be as daughter of Ghulam Hussain, she allegedly engaged a counsel in the suit; the counsel attended the proceedings on certain dates but later disappeared from the proceedings; in result, exparte proceedings were initiated and the suit was finally decreed vide ex parte judgment dated 22.10.2014.
3. Petitioner filed an application under Order IX, Rule 13, C.P.C. wherein it was asserted that he was never served in the suit with any process; no newspaper was ever received by him; Safia Akhtar was not the daughter of petitioner and that the suit was filed against the petitioner through Safia Akhtar by falsely representing her as daughter of the petitioner notwithstanding the fact that the petitioner had never married, the question of having a daughter could not therefore, arise and that the decree was obtained by concealment of facts which needed to be set aside. The application was contested by respondent No.1 by filing a reply; issues were framed on 02.11.2016 whereupon the case was fixed for evidence. At the stage of evidence an application for permission to file a list of witnesses was moved by the petitioner , inter alia pleading that he met with an accident that resulted in his leg getting fractured consequent to which he could not contact his counsel and, therefore, the list of witnesses could not be filed in time. The application was contested by respondent No.1. The learned Civil Judge allowed the application vide order dated 03.4.2018, respondent challenged the order in revisio n which was allowed by learned Addl. District Judge vide order dated 13.6.2018 and, in result, the order was set aside. In the instant Constitutional petition, order dated 13.6.2018 of the learned Addl. District Judge has been impugned.
4. Learned counsel for the petitioner , pressed the grounds mentioned in the application, seeking permission to file the list of witnesses and argued with vehemence that due to leg fracture in an accident the petitioner could not contact his counsel nor could file the list in time and that the non-filing of list was on account of unavoidable circumstances and also that it was a case in which sufficient reasons for non-filing of the list of witnesses and for permission to file it after the expiry of time were duly given and that the reason s for seeking permission were evasively responded by respondent No. 1 in his reply which amounted to admission and in these circumstances, the learned Civil Judge rightly allowed the application but the learned Addl. District Judge, for untenable reasoning, interfered with the order of the court below which had been passed in the discreti onary jurisdiction and for sound reasons. Further argued that the petitione r had taken a specific plea showing unavoidable circumstances for non- filing of list of witnesses and if the learned Addl. District Judge intended to furthe r satisfy , he could have directed the filing of record of treatment of petition er and that the petitioner could have produced the same. Contrarily the learned counsel for the respondents supp orted the impugned order and submitted that since medical evidence was not produced, it was not a case in which the permission could not have been accorded and that the learned Addl.
District Judge, rightly interfered with in the impugned order and rejected the application.
5. Perusal of the record available on the file manifestly reveals that decree in this case was obtained exparte, application for setting aside of the decree was filed on the ground that the petitio ner was never served with any process, the lady through whom the suit was filed against the petitioner was falsely claimed to be the daughter of the petitioner and that the petitioner having not married, did not have any issue and have no relation with the so called Safia Akhtar and that the decree was obtained by concealment of facts which calls for interference. In the application for permission to file list of witnesses, explaining the reasons of non-compliance, it was specifically asserted that the petitioner met with an accident in which his leg was fractured and due to this reason he could not contact his counsel who in turn could not file the list of witnesses in time. Perusal of para 2 of the application manifests that the petitioner asserted that the non-filing of list of witnesses was due to an accident which resulted in his leg fractured and that the non-filing of list of witnesses was inadvertent and on account of his leg fracture in the accident. The contents of paragraph 2 of the application of the petitioner was responded by respondent No.1/plaintif f as follows: - "2. That para 2 is incorrect and denied vehemently . It was the duty of the counsel as well as the petitioner to submit the List of Witnesses well within the time, hence the application is liable to be dism issed. The word "Sehwan" does not fall within the ambit of good cause as provided under the law and the judgment of the apex courts hence no good cause has been mentioned in the instant application, hence the same merits to be dismissed".
6. It is discernible from para 2 of the application that the petitioner had elaborately mentioned that he met with an accident which resulted in fracture of his leg and that on account of leg fracture, he could not contact his counsel who could not file the list in time. The petitioner in his reply did not say a word about the accident or about the plea of leg fracture. Rather it was vaguely responded that para 2 is denied. In the later part of the reply was confined to the word "sehwan" and it was in that context the respondent No. 1 alleged that it did not fall in the definition of sufficient cause. It is discernible that the respondent No.1 in his perception assumed as if the reason or explanation for non-filing of the list was the use of the word "sehwan" though this does not appear to be reason if one minutely read para 2 of the application as it clearly says that because of the accident and fractured leg, the petitioner could not contact his counsel and, therefore, the list of witnesses could not be filed inadv ertently . The word "inadvertent" was not the reason given for the condonation of default rather the same was used to explain the consequential effect of accident. Petitioner had specifically alleged that he met an accident which resulted in leg fracture while reply was evasive and the respondent No.1 never claimed that no accident had taken place or that the petitioner never got his leg fractured in an accident; the reply was limited to respond to the word "sehwan" which was not the sole reason to seek permission. The word "inadvertent" could not be read in isolation and was to be read along with the remaining factual statement regarding accident and fracture of leg. Even in the grounds of revision petition this was never claimed that the story was fictional or that no accident had taken place or that the petitioner did not receive leg injuries. It also appears from the statement of AW1 who deposed in statement recorded on 14.10.2018 that Ghulam Hussain petitioner was a deaf and dumb person and that his leg was broken in the accident which part of her statement was not cross examined. In view of these circumstances, the learned Civil Judge, rightly allowed the application but the learned Addl. District Judge interfered with the order for extraneous reasons, observing that the medical certificate was not produced along with the application nor the date on which the accident took place and when recovery was made, was not mentioned. The view taken by the learned Addl. District Judge does not appear to be sound in view of the peculiar circumstances of this case.
7. Examining the facts of the instant case, it is obvious that the petitioner had pleaded that he met an accident which resulted in his leg fracture due to which he could not file the list of witnesses. In reply the respondent No. 1 did not plead that no such accident had taken place or the leg was not fractured. Had a specific defence been taken to question the plea of accident or the sufferance of petitioner in the accident, the petitioner could have requested the court to frame an issue, allow evidence, and would have produced the medical evidence with the record of the hospital or the clinic where he had remained under treatment but this occasion did not arise in view of the evasive denial of the respondent in his reply to the application. In "Iqbal Ahmad Sabri v. Fayyaz Ahmad and others" (2007 CLC 1089 ) it was observed by a learned Division Bench of this Court that Order VIII, Rule 3, C.P.C. envisaged that it shall not be sufficient to deny generally the grounds alleged in the plaint but the defendant must deal specifically with each allegation effect of which he does not admit the truth and that every allegation of fact if not denied specifically shall be deemed to be admitted except for a person under disability . In "Inam Naqshbandi v. Haji Sheikh Ejaz Ahmad" (PLD 1995 SC 314) it was observed that examination of rule 5 of Order VIII, C.P.C. shows that the allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted exce pt as against the person under disability . The respondent having not alleged in his reply that no accident took place or that the petitioner 's leg was not fractured, the plea taken in the applic ation will be deemed to have not been seriously opposed and, therefore, the permission to file list was lawfully allowed.
8. In addition to the factors noted supra, it will be necessary to refer to certain peculiar features of this case as the same are material and helpful in the matter . The suit was decreed ex parte on 22.10.2014. Perusal of the file reveals that the defendant was allegedly sued through one Safia Akhtar who was claimed to be daughter of the petitioner . She allegedly engaged a counsel and thereafter filed an application that her alleged father was insane; an application under Order XXXII, Rule 3, C.P.C. for her appointment as guardian ad-litem was submitted on 15.5.2013; and on the statement of counsel for the plaintif f/respondent herein, to the effect that he had no objection to the appointment of said lady as guardian ad-litem, the application was allowed; Safia Akhtar was appointed as guardian ad-litem and case was adjourne d for filing of amended plaint. At a later stage, counsel appointed by Safia Akhtar disappeared from the proceedings, the ex parte proceeding order was passed on 20.3.2014 and thereafter an ex parte decree was passed on 22.10.2014. The learned Civil Judge did not take note of all these facts in his order dated 02.11.2016 and thereafter framed issues. The operative part of the order dated 02.11.2016 reads as follows: - "4. Record reveals that case titled "Muhammad Ali vs. Ghulam Hussain" was filed in this court on 24.6.201 1.
Same kept pending ultimately decreed exparte vide judgment and decree of this court dated 22.10.2014. Original file perused. Summons, notices annexed with the same shows that petitioner/defen dant was never served either in person or through any of his close relative. It is pertinent to mention here that on 26.9.201 1 some lady named Safia appeared before the court and claimed that she was daughter of defendant and that her alleged father/defendant was insane. She was asked by the court to produce some medical certificate in this regard.
Subsequently , on behalf of the said lady an application under Order XXXII rule 3 CPC for her appointment as guardian ad-litem of defendant. Case was adjourned for written reply of said application for 13.10.201 1. After submission of written reply of the same, few dates later when the case was fixed for arguments on the said application. On 15.5.2013, learned counsel for plaintif f, Mr. Muhammad Shakeel, Advocate got recorded his statement to the effect that he has no objection if application of defendants' allege d daughter for her appointment as guardian ad-litem is accepted. Hence, in the light of statement of learned counsel for plaintif f, application of petitioner Safia Bibi was accepted and plaintif f was directed to file amended plaint after making petitioner Safia Bibi as guardian ad-litem of defendant and case was adjourned for filing of amended plaint. Subsequently , after submission of amended plaint when case in hand was fixed for filing of written statement, no one appeared on behalf of defendant, ultimately case in hand was proceeded against exparte against defendant on 20.3.2014. After recording exparte evidence the same was decided exparte vide judgment and decree dated 22.10.2014. During course of arguments learned counsel for petitioner/defendant has pointed out towards address of defendant claiming that the same is incorrect as given in the plaint. Furthermore, claim of petitioner/ defendant that he remained unmarried throughout his life need consideration. Hence, a big question mark is raised on the authority of Mst. Safia who appeared on his behalf showing herself as his daughter . Furthermore, appearance on behalf of defendant and subsequent disappearanc e by his alleged daughter shows that some kind of manipulation was made during proceedings of this case. Although learned counsel for responden t/plaintif f has pointed out some points regarding limitation yet it is an established principle that limitation is always a mixed question of law and fact which is to be determined after recording evidence of parties. There is no doubt that case titled above was exparte decreed wherein defendant was not given a fair opportunity contest the suit. In the light of above discussed facts and circumstances, there is no denying of the fact that judgment and decree dated 22.10.2014 was passed exparte without hearing the contention of petitioner/defendant. It is repeatedly held in various judgments of Honourable Higher Courts that lis should always be decided on merit and technicalities should not impede in the ways of justice and equal opportunities shall be given to each party to the suit to present their point of view before the court for proper adjudication of a case. Hence, it seems appropriate that controversy should be decided after recording evidence of the parties, thus in the light of pleadings of the parties, following issues are hereby framed..."
(Emphasis supplied)
9. Deeper analysis of the facts noted hereinabove, raised a number of questions; as to whether Ghulam Hussain was mentally unsound and, if so, could any notice be served upon a person of an unsound mind; whether any decree could be passed against a mentally unsound person without properly appointing his guardian ad-litem by following the procedure envisaged by Order XXXII, Rule 2, C.P.C.; whether on the disappearance of Safia Akhtar the alleged guardian ad-litem, the court was not duty bound to appoint a fresh guardian ad-litem so as to ensure due protection of interest of a person who was deemed as a man of unsound mental condition and what will be the effect of non-adherence to the mandatory pre-requisites in this case. It needs to find out as to whether Safia Akhtar had any relationship with Ghulam Hussain and whether she could legally represent him.
10. As noted hereinabove, the learned Civil Judge did take note of all those facts which raised question marks and required serious determination in the matter and it appears that keeping in view the overall set of circumstances, it was deemed appropriate to grant permission of filing list of witnesses.
11. The learned Addl. District Judge, interfered with the order of the learned trial court by ignoring all the relevant factors which ought to have been considered to find out as to whether in the peculiar circumstances it was a case in which efforts should have been made for decision on merits. As regard the provisions of Order XVI, Rules 1 and 2, C.P.C., it is manifest that the provisions are mandatory , a list of witness needs to be filed within seven days from the framing of issues, but despite that the court is not denuded of its jurisdiction to permit a party to file a list of witnesses after the expiry of the period fixed in the rule, if satisfactory explanation for non-compliance of rule is given; and the court for sufficient reason, deemed it necessary to grant the permission. In "Muhammad Anwar and others v. Mst. Ilyat Begum and others" (PLD 2013 SC 255) it was ruled by the honourable Supreme Court while interpreting the provisions of Order XVI rule 1 of CPC to the effect that Order XVI(2) could be validly bifurcated in two parts first it was made incumbent upon the party rather a duty has been cast about the delinquent party to show good cause or omission to file the list of witnesses or of the name of a particular witness and the second part is meant to regulate the power , authority and discretion of the court in relation to the grant of permission. It was further observed to the effect that the expression good cause according to law will be a logical sufficient reason and could be construed in wider terms and that no hard and fast and absolute criteria could be set forth as a benchmark to the test, if a case of omission to file the list of witness es 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 as to why request should be granted or inaction/omission should be excused; in other words, the judicial conscience of the court should be satisfied with justifiable reason; 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 or the omission ask for the filing/summoning or even to produce the witness only on account of lame excuse and bald assertions that it should be in the interest of justice and/or it shall facilitate the court in deciding the matter . It is thus obvious that as per rule interpreted by the honorable Supreme Court, the party who had not filed the list of witnesses within time needed to show a "good cause" for the omission or inaction while the court is expected to record reasons for granting the permiss ion. Obviously , the term "good cause" or "sufficient reasons" can be examined keeping in view the facts of each and every case. In the reported case, the explanation was to the effect that the plaintif f had deposed concocted story in her evidence and if the official witness with record are summoned, the court will have convenience in announcing a correct decision. This explanation was not considered to be either sufficient or "good cause" and therefore the order of the court below refusing the application under Order XVI, Rule, 1, C.P .C. in Constitutional jurisdiction was not interfered with.
12. In the instant case, the facts as noted supra clearly reveal that the petitioner did give reasons for non-filing of the list of witnesses. The reason was that he met with an accident wherein his leg was fractured and due to the same he could not contact the counsel nor could file a list within seven days. In this backdrop a request for the grant of permission of late filing of the list was solicited which was allowed. It is thus obvious, that the petitioner had given a serious reason which could be termed in any case to be in "sufficien t good cause" for the grant of permission. The assertion regarding the accident and fracture of leg was not seriously contested as it was nowhere alleged in the reply to the application that the petitioner did not meet any accident or did not fracture his leg. The fact of evasive response of respondent No.1 has already been considered hereinabove. In view of the factual and legal position, the petitioner who was required to give plausible reason for non-filing of the list had given a reason which for all intents and purposes was sufficient, cogent and good enough to seek indulgence of the court in discretionary jurisdiction. The learned Addl. District Judge brushed aside this plea on the assumption that the petitioner was expected to file medical evidence, little appreciating that the factum of accident and fracture of leg was not specifically challenged in the reply nor a single word was expressed to claim that no accident had taken place or that the leg of petitioner was never fractured in an accident. In case the learned Addl. District Judge had any reservations, he could have directed the petitioner to produce the supporting medical evidence in respect of the accident and treatment of his fractured leg. This situation did not arise in the trial court as it appears from the reply of the respondent that he had confined his objection to the word "sehwan" and did not offer his comments to the plea of the petitioner regarding the accident and fracture of leg. The evasive denial was not sufficient and in law it will be deemed to be an admission of the fact alleged. Be that as it may, the other important factors, that the suit was filed against a person who was subsequently claimed to be lunatic and exparte decree is claimed against him without any following up the mandatory procedure to protect the interest of such a defendant. It is also observed that AW 1 in her statement had deposed that the petitioner 's leg was fractured in an accident and he was deaf and dumb person . This part of the statement does not appear to have been seriously contro verted. In all the circumstances, there was sufficient material on record to justify the permission for filing of the list of witnesses. In "The Australasia Bank Ltd. v. Messers Mangora Textile Industries Ltd. and others" (1981 SCMR 150) it was observed d by the Honourable Supreme Court as follows: - "5. Coming to the first contention, we are of the view that the considerations relevant for determining the question whether or not a party had shown good cause for its failure to file a list of witnesses are a plausible explanation by the party , prejudice if any to the opposite-party and inconvenience to the court. If a reasonable explanation is given and no prejudice is caused to the opposite-party in its defence and Court is not unduly inconvenienced the party' s evidence should not be shut out for its failure to file the list of witnesses within seven days of the framing of issues..."
In another case "Dr. Professor M.A. Cheema Surgeon, PIC, Lahore v. Tariq Zia and others" (2016 SCMR 119) it was observed by the honourable Supreme Court as under:- "3. On 27.9.2004, the petitioner had moved such application for summoning the officials of Punjab Institute of Cardiology , Lahore for production of some record relating to patient Muhammad Talal. After entertaining objection to this application from the other side, it was allowed by the Court of Civil Judge, Lahore vide his order dated 04.4.2005, with the observation that: - "The suit is for recovery of damages on account of death of patient Muhammad Talal due to alleged negligence of hospital and concerned doctors, therefore, record of the patient is helpful for just decision of the case and while treating the application of the defendant No.3 so application of additional evidence, in the interest of justice it is accepted at the costs of Rs. 300/- and plaintif f is allowed to rebut the evidence of the defendant."
4. The above order was challenged by respondent Nos. 1 to 3 through civil revision petition under section 115, C.P.C., before the Lahore High Court, being Civil Revision No. 1560/2015, on the ground that the name of the said witness summoned with record from the Punjab Instituted of Cardiology , Lahore was not appearing in the list of witnesses submitted by the petitioner . This plea was sustained by the revisional Court and resultantly the Civil Revision was allowed through impugned judgment and the application under Order XVI, Rules 1 and 2 read with section 151, C.P .C. was dismissed.
5. We have heard the arguments of learned ASC for the petitioner . He has taken us to the list of witnesses submitted on behalf of the petitioner , to show that names of many witnesses from Punjab Institute of Cardiology were already cited in the list of witnesses filed before the Civil Court in time, out of whom anyone could have been summoned for production of record, which was otherwise not accessible to the petitioner , being in their custody and control and copies not made available to the petitioner , however , this aspect of the matter escaped the sight of the revisional Court.
6. Despite publication of notice of this petition nobody has turned up on behalf of the respondents to contest the case.
7. After careful perusal of the material available on record, we are satisfied that the order dated 04.4.2005 passed by the Civil Judge, which was discretionary in nature, was fully justified on the basis of facts discussed in it.
However , the revisional Court, without looking into the limited scope, of section 115, C.P.C., not only entered into unnecessary technical aspects of the case but also misread the record, which resulted in the passing of impugned judgment against the petitioner ."
In the reported case the order of the revisional court, whereby the order of trial court permitting the production of witness was set aside by the honourable Supreme Court and that of the trial court was restored
13. In view of the authoritative enunciation as noted supra and also the peculiar facts and circumstances of the present case, it is concluded that the impugned order in revisional jurisdiction passed by learned Addl. District Judge suf fers from inherent legal infirmity and jurisdiction and is unsustainable.
14. As upshot to the above, this Constitu tional petition is allowed ; the impugned order 13.6.2018 of the learned Addl. District Judge Sheikhupura is, set aside as the same is illegal and without lawful jurisdiction, in result, the order dated 23.4.2018 of the learned Civil Judge, is upheld and restored.