C.M. No.1 of 2020.
AYESHA A. MALIK, J.----This is an application for restoration of the titled-petition which was dismissed for non- prosecution on 10.1 1.2020.
2. For the reasons stated in this CM duly supported with an affidavit, the application is allowed and the titled petition is restored to its original number and is fixed for hearing today with the consent of the learned counsel for the parties.
Main Case
3. Through the instant Petition, the Petitioner has impugned judgment dated 6.10.2012 passed by Respondent No.7, Additional District Judge, Chiniot.
4. The basic case of the Petitioner is that Respondent No.1 filed a suit for declaration titled Taley Bibi and others v.
Mst. Jannat Bibi and others against the Petitioner on 16.1.1998, with the prayer that Hibba Nama No.1720 dated 1.10.1997 with respect to land measuring 50 kanals situated at Chak No.187/JB Chiniot, in favour of the Petitioner and subsequent sale by the Petitioner vide mutation No.674 dated 14.2.1998 in favour of Respondents Nos.2 to 6 be declared void and illegal. The Petitioner filed an application on 12.3.2012 for summoning of witnesses and for production of documents in the suit pending before Civil Judge, Bhowana which was resisted by Respondent No.1 by filing written reply to the said application. However , Civil Judge, Bhowana vide order dated 18.4.2012 allowed the application to the extent of summoning of witnesses as well as production of documents that is registered gift deed dated 1.10.1999, certified copy of Register Haqdaranzamin for the year 1991-92, certified copy of Khasra girdawari for the year 1996 as well as public documents. However , to the extent of production of record of criminal case mentioned in para 9 of the application, the same were not found relevant, hence the application to that extent was dismissed. Aggrieved of this order of 18.4.2012, Respondent No.1 filed civil revision before the Additional District Judge, Chiniot which was allowed vide order dated 6.10.2012.
5. The impugned order dated 6.10.2012 passed by the Additional District Judge, Chiniot finds that the issues in the suit were framed on 2.6.1999. After recording the evidence of the plaintif fs the case was fixed for 25.10.2009 for the evidence of the defendants which they did not produce despite having availed many adjournments. So ultimately vide order dated 17.6.2009 the right of defendant No.1 for producing evidence was closed by the trial court. This order of 17.6.2009 was challenged in revision and ultimately set aside vide order dated 13.1.2010 whereby defendant No.1 was granted only one opportunity to produce her evidence. Thereafter she produced three witnesses and sought an adjournment which was refused on 2.2.2010. Finally the right to adduce evidence was closed on 9.2.2010. The case was then fixed for final arguments when defendant No.1 moved an application seeking permission to summon 11 witnesses and to produce seven documents. The trial court allowed the application vide order dated 18.4.2012 but the revisional court set aside the order of 18.4.2012 vide impugned order dated 6.10.2012. Hence this Petition.
6. The order of the trial court dated 18.4.2012 partially allowed the application of the Petitioner on the ground that the witnesses and the documents are necessary for a just decision of the case and the same will help the court to decide the matter fairly. With respect to the Petitioner's request to produce certain criminal record mentioned in para-9 of the application, the same were not allowed on the ground that they are not relevant with respect to the dispute at hand. The revisional court vide judgment dated 6.10.2012 set aside the order of the trial court on the ground that the trial court has ignored the mandatory provisions of Order XIII, Rules 1 and 2, Order XVI, Rule 1 read with Order XVII, Rule 3 Civil Procedure Code, 1908 ("C.P .C."). The court concluded that the trial court must decide the case in accordance with law and cannot deviate from the mandatory provisions of the law. The Petitioner is aggrieved by this order essentially on the ground that since it will not help the decision of the case, she should be allowed to produce the desired documents as well as witnesses. Further states that the law on this point is settled.
7. So far as the list of witnesses is conc erned, if the witnesses have not been named in the list of witnesses as required under Order XVI, Rule 1, C.P.C., the witness cannot be called subsequently unless sufficient cause is given. In this case the application filed by the Petitioner provides "inadvertence" as a reason for not calling the eleven witnesses which reason is not sufficient since the Petitioner has essentially relied upon public documents as well as public officers namely Record Keeper and Registry Clerk along with Registry Moharrir amongst others as her witnesses. These people were all known and available to the Petitioner when she filed her list of witnesses.
Reliance is placed on Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255) and Haji Zarwar Khan through L.Rs. v. Haji Rehman Bangash and others (2016 SCMR 1976 ). Hence the order of the revisional court is in accordance with the law and the trial courts order to allow the application to decide the case for a just and fair decision in the case is in total negation of the requirements of the law .
8. Under the circumstances, the instant Petition is dismissed and the impugned judgment dated 6.10.2012 passed by the Additional District Judge, Chiniot is maintained.