Anwaar Hussain, J. Through this single judgment, present as well as connected constitutional petition bearing W.P. No.795/2019 is sought to be decided as both petitions emanate from the findings of the learned Courts below in a suit for specific performance of contract instituted by one Brig (R) Abdul Hadi, whose legal heirs are respondents in the present petition and the petitioners in connected petition (for facility of reference, hereinafter are referred to as 'the plaintiff'), against one Brig (R) Ghulam Hafeez whose legal heirs are the petitioners in the present petition and respondents No.1 to 5 in connected petition (for facility of reference, hereinafter are referred to as 'the defendant').
2. The factual background that led to the filing of both the constitutional petitions is that in a suit for specific performance of contract instituted by the plaintiff, the defendant filed written statement and after framing of issues, parties were directed to produce their evidence. During the course of recording of evidence, once the plaintiff himself appeared as PW-1 and his statement was duly recorded and cross-examined, an application was filed by the plaintiff for production of private witness, namely, Taimoor Baig along with production of documents including those relating to SMS etc., which was contested by the defendant. The learned Trial Court dismissed the application, vide order dated 19.07.2018, which was assailed by the plaintiff by filing revision petition under Section 115 of Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"). Through impugned judgment dated 17.01.2019, the learned Revisional Court partially accepted the revision petition and allowed the application of the plaintiff to the extent of production of Taimoor Baig as witness whereas to the extent of production of documents including those related to SMS exchanged between the parties, the findings of the learned Trial Court were upheld.
3. The defendant has assailed the judgment of the learned Revisional Court dated 17.01.2019 to the extent that the plaintiff is not entitled to produce Taimoor Baig as witness, whereas, the plaintiff has assailed the judgments of the learned Courts below laying challenge to refusal of the learned Courts below in allowing the plaintiff to produce record pertaining to SMS as well as other documents.
4. Learned counsel for the defendant submits that the learned Revisional Court below has erred in partially allowing the application of the plaintiff on the ground that original list of witnesses that contains the name of Taimoor Baig is available in the file of the learned Trial Court but same does not contain the stamp and signatures of the Presiding Officer concerned inasmuch as had there been any list containing name of said Taimoor Baig, there would have been no need to file such an application by the plaintiff. Adds that the argument is further substantiated as there is no plea in the application that list of witnesses is available and the same does not carry stamp/signatures of the Presiding Officer concerned on the application. Places reliance upon "Muhammad Anwar and others v. Mst. Ilyas Begum and others" (PLD 2013 SC 255) to support that unless good cause has been shown in a case, a party cannot be allowed to produce said persons whose names are not in the list.
5. Conversely, learned counsel for the plaintiff frankly stated that no doubt the application for production of witness was not happily worded clearly highlighting the good cause, however, draws the attention of this Court to order dated 11.09.2017 available on case file of this Court to submit that said Taimoor Baig was duly present before the learned Trial Court along with the plaintiff to depose in favour of the plaintiff and has also affixed his signatures on the order sheet of the learned Trial Court, however, when subsequently said Taimoor Baig was not allowed to depose in favour of the plaintiff, the latter was constrained to file the application. Further contends that if the witness required to be produced is deposing in consonance with the pleadings of the parties his evidence must be recorded. As regards the production of documents including SMS, learned counsel submits that the same also finds mentioned in the plaint of the suit and hence, there is no surprise to the other side regarding the nature of evidence to be brought on record. Learned counsel also draws the attention of this Court to Form in terms of Order VII Rule 14, CPC appended with the plaint in which it also finds mentioned that record of SMS between the parties will be produced before the learned Trial Court.
6. Arguments heard. Record perused.
7. The suit instituted by the plaintiff is being hotly contested by the parties in which evidence of the plaintiff as PW.1 has already been recorded. The plaintiff's application has been partially accepted by the learned Revisional Court below to the extent of production of Taimoor Baig as witness and decision has been assailed by the defendant mainly on the ground that the list of witnesses filed by the plaintiff under Order XVI Rule 1, CPC was mysteriously placed on record of the learned Trial Court and when the learned Revisional Court itself has directed the learned Trial Court to probe into the matter, therefore, there was no justification in allowing the application on the basis of the said ground.
8. As regards the submission of list of witnesses, law is envisaged in terms of Order XVI, CPC. Time- frame within which the list of witnesses is to be submitted and the effect of non-submission within the stipulated time under the law or omission to include the name(s) of the witness(es) therein has been subject matter of multiple cases before the High Courts as well as before the Hon'ble Supreme Court of Pakistan whereby the scope of Order XVI Rules 1 & 2, CPC has been interpreted.
There is no cavil to the proposition that a period of seven days has been mentioned under Order XVI Rule 1, CPC for submission of the list of witnesses and in case of any deficiency therein, the consequences as well as the remedial measures are envisaged under Rule 2 of Order XVI, CPC, which vests powers with the Court to allow a party to submit a list of witnesses or produce a witness(es) if good cause is shown. In case reported as "The Australasia Bank Limited v. Mangora Textile Industries, Swat and others" (1981 SCMR 150), the Hon'ble Supreme Court of Pakistan has held as under: "05 ..... if a reasonable explanation is Given and no prejudice is caused to the opposite-party in its defence and the Court not unduly inconvenienced, the party's evidence should not be shut out for its failure to file the list within 7 days of the framing of the issues ."
(Emphasis supplied)
In case of Muhammad Anwar supra, the Hon'ble Supreme Court of Pakistan also held that no hard and fast rule and absolute criteria can be set forth, as a benchmark, to test, if a case of omission to file the list of witnesses or a name in such list is on account of 'good cause' or otherwise and the same depends upon the facts of a particular case and in all eventualities a party in default has to show a 'legally sufficient reason' why such a request should be granted or in-action/omission should be excused. The Hon'ble Supreme Court of Pakistan also laid down a guiding principle that it is judicial conscience of the Court that should be satisfied with justifiable reasons for allowing such concession. There does, however, appear to be some difference in terms of what the 'good cause' requirement entails. In case of Muhammad Anwar supra, the Hon'ble Supreme Court of Pakistan held that good cause is to be interpreted more broadly than the sufficient cause and that it should be a 'legally sufficient reason' and the 'judicial conscience' of the Court should be satisfied. What constitutes 'legally sufficient reason' is a fact that is to be decided on case to case basis. However, it is amply clear that the Hon'ble Supreme Court of Pakistan in case of Muhammad Anwar supra, raised the threshold for the reasons/grounds on the basis of which a party could be allowed to produce a witness when the said witness was not mentioned in the list of witnesses. On the other hand, the earlier judgment of a larger Bench of the Hon'ble Supreme Court of Pakistan in case of The Australasia Bank Limited supra had applied a different standard for determining what 'good cause' ought to be and a three pronged test has been laid down while allowing such an application i.e., (i) the party seeking to call the witness should give a reasonable explanation; (ii) no prejudice is caused to the opposite-party in its defence; and (iii) the Court is not unduly inconvenienced. It is apparent that the standard in case of The Australasia Bank Limited supra is not nearly as formidable as the 'legally sufficient reason' requirement laid down in case of Muhammad Anwar supra, rather the focus in The Australasia Bank Limited supra appears to be on procedural fairness, ensuring that the opposite party is not prejudiced in its defence and the Court is not unduly inconvenienced meaning thereby that the underlying objective is not to technically knockout a party for its omissions and ineptitudes. In the said case, the Hon'ble Supreme Court, has liberated the reasons to be recorded by the Courts instead of confining them to the explanation or reasoning put forth by a party to the lis for the omission of the name of a witness in the list of witnesses.
9. Having above referred guidelines in sight, the judgment of the learned Revisional Court below has been perused in which the reason put-forth by the said learned Court allowing the plaintiff to produce Taimoor Baig as his witness, reads as under: "6 ..... I have considered the arguments of learned counsel for the parties. It is pertinent to note that attested copy of list of witnesses containing the name of Taimor Baig has been produced by the petitioners. Surprisingly the same does not contain the stamp of the Court and signatures of Presiding Officer. I have summoned the Ahlmad of the concerned Court alongwith record. Original list is available in the file of the trial Court but same also does not contain the stamp/signature of the concerned Presiding Officer. Anyhow as the same is available in the file of learned trial Court so same would be considered as part of the file. The name of Taimor Baig, to whom the petitioner wants to summon as witness, is available in the said list. Hence the revision petition to the extent of summoning of said witness is accepted."
It is well evident from perusal of the impugned order reproduced hereinabove that the permission to produce witness has been granted with reasoning, showing judicious application of mind and not as a matter of routine. It is settled law that a party should not suffer by an act of the Court and if the Presiding Officer concerned has not signed the list, there is no fault, which can be attributed to the plaintiff. Insofar as the argument of learned counsel for the defendant that had there been list available in the first instance, the same should have been referred in the application for production of Taimoor Baig and such reasons are conspicuous by their absence in the said application that fact has escaped notice of the learned Revisional Court below is concerned, it is pertinent to mention that no doubt the application is not properly worded and the reasons have not been articulated in an appropriate manner, however, as held by the Hon'ble Supreme Court in above referred cases, the Court allowing the application has to satisfy its judicial conscience, which the learned Revisional Court appears to have done. In addition, in peculiar circumstances of the case, the attendant circumstances can always be looked into by this Court. In the instant case, on 11.09.2017, said Taimoor Baig was present along with the plaintiff and his signatures were taken on the order sheet which fact alone indicates that he came before the learned Trial Court to depose alongwith the plaintiff. No doubt, this fact is not properly recorded in the application filed by the plaintiff for production of Taimoor Baig or even in the impugned order of the learned Revisional Court below, however, while following more liberal view taken by the Hon'ble Supreme Court in case of The Australasia Bank Limited supra, a holistic perusal of the record reveals that the plaintiff clearly intended Taimoor Baig to be his witness and brought him to the learned Trial Court.
Needless to mention that the purpose of submission of the list of witnesses is that the opposite party should not be taken by surprise as to who and what evidence is to be adduced in support of the claim of the plaintiff or defence of a defendant so that the other side may make necessary preparations for cross examinations etc., and to prevent any concoction and fabrication of the evidence. In the instant case, record reveals that Taimoor Baig appeared before the learned Court and signed the order sheet, which is judicial record having sanctity attached to it and the defendant never objected to the same. It can be easily inferred that the defendant was well aware that Taimoor Baig has to depose in the matter, else presence of Taimoor Baig before the learned Trial Court and his act of signing the order sheet of the case without any objection from the defendant becomes not only meaningless but also acts as an estoppel upon the defendant that he is surprised by the introduction of Taimoor Baig as a witness.
10. In the light of careful perusal of above referred case law and keeping in view the peculiar facts of the instant case, there are number of aspects that gets merged which leads to the inference that there is no complete embargo on receiving the evidence of a witness not mentioned in the list of witnesses so long as a good cause can be shown for which the Court has to satisfy its judicial conscience and in the instant case, this Court is of the opinion that the learned Revisional Court has rightly exercised its discretion as per its judicial conscience by accepting the application of the plaintiff for production of Taimoor Baig as witness.
11. Insofar as production of record pertaining to SMS and other documents by the plaintiff is concerned, both the learned Courts below have non-suited the plaintiff on the ground that neither detail of SMS along with date, month and year nor phone number from which such SMS was sent has been mentioned. The manner in which the documents are to be presented on the first date of hearing or on any other future date including the time of recording of evidence is, inter-alia, regulated by submitting Forms under Order XIII as well as Order VII, CPC. In case reported as "The Lahore Improvement Trust v. Messrs Khuda Baksh-Meraj Din" (PLD 1956 Lahore 252), this Court has held that statutes are to be interpreted with due regard to their objects and the object of Order XIII, Rule 2, CPC is to exclude forged documents and to expedite the trial and not to exclude genuine documents. It has been further held that if there is no doubt as to the authenticity of a document, and if at the same time its admission was not in any way to delay the trial of the suit, words of Rule 2 should not be allowed to bar its production. The Hon'ble Supreme Court of Pakistan in the case reported as "Zar Wali Shah v. Yousaf Ali Shan and 9 others" (1992 SCMR 1778) has held that even if either party failed to produce a material document, the Court had ample power to do so to advance the cause of justice. Similarly, in case reported as "Messrs Trading Corporation of Pakistan v. Messrs Rahat & Co." (2005 CLC 1305), the learned Sindh High Court held as follows: "11.....The objections that the documents sought to be produced were not filed by the defendant with his written statement and there was no mention of such document in the column of "documents relied upon" by the Defendant are untenable in law. Under the law of pleadings, a party is required to plead the material facts and there is nothing under the Civil Procedure Code under which a party is obliged to file copies of documents along with the pleadings. Therefore, non-filing of such documents with the written statement by the defendant was immaterial. I have noticed that in paragraphs 13.3 and 13.4 of the written statement, reference has been made to the documents of the Plaintiff and even the column "documents relied upon" of the written statement refers to the report/books and journals, though such column was unhappily worded. Therefore, even this objection of the learned counsel for the Plaintiff was not in conformity with the record."
Similar view was also taken in case reported as "Kohinoor Tobacco Company (Pvt.) Ltd. v. S.M.
Idrees Allawala" [2013 CLC 1789 (Sindh)] as well as "Shah Muhammad and 9 others v.
Habibullah and 25 others" (PLD 2020 Bal 5) and "Abdul Kareem v. Sultan Badshah" (PLD 2021 Bal 139).
12. The above referred analysis clearly depicts that provisions of Order XIII, Rule 2 CPC should be liberally construed and as long as reference to the document is made in the pleadings that should be taken as a sufficient ground for allowing its production. With above analysis in sight, this Court has to examine the contents of the pleadings, Forms submitted by the plaintiff under Order VII, Rule 14, as well as Order XIII, Rule 1, CPC and the plausible explanation rendered by the plaintiff for production of the SMS and other documents. Perusal of the plaint reveals that, in para-5 of the plaint, necessary detail has been given in the following terms: "5. That thereafter the plaintiff time and again booked the seats of PIA from Lahore to Karachi as well as Islamabad to Karachi but due to unavoidable circumstances as conveyed by estate agent in Hyderabad, the Sale transaction could not be registered in time. Resultantly, the plaintiff could not receive the amount from Hyderabad which was to be paid subsequently to the defendant No.1.
However, this very material fact was conveyed by the plaintiff to the defendant No.1 through SMS as well as phone calls but the defendant No.1 did not show any apprehension/objection over the said delay. Record of SMS is attached herewith for the kind perusal of this Honourable Court."
(Emphasis provided)
Perusal of above referred para 5 of the plaint, when read in conjunction with the remaining paras thereof indicates that the plaintiff has clearly referred his correspondence with the defendant through SMS and the record/screen shot in this regard has been appended with the plaint. The Court has to see as to whether such production of documents in any way is likely to delay the trial of the suit, which is not the case of the defendant side. In the instant case, the plaintiff in plaint of his suit has referred to this correspondence with the defendant through SMS and the date and time on which the said SMS was sent is also clearly reflected therein and the reference has also been made in list of reliance while appending the screenshot/record of the said SMS. Therefore, the learned Revisional Court has erred in upholding the findings of the learned Trial Court on the ground that as there is no date or any time as well as phone number from which the SMS was sent, hence, the plaintiff cannot be allowed to produce record of SMS. Needless to mention that document appended with the plaint clearly shows the mobile number on which the SMS has been sent by the plaintiff. Therefore, this Court is of the opinion that the learned Courts below have erred in declining the permission to the plaintiff for production of record pertaining to SMS between the parties duly appended with the plaint and also referred in the Form under Order VII Rule 14, CPC.
13. In view of the above discussion, constitutional petition bearing W.P No.491/2019 filed by the defendant is dismissed and findings of the learned Revisional Court below to the extent of production of Taimoor Baig as PW are upheld and the connected constitutional petition bearing W.P No.795/2019 filed by the plaintiff is allowed and the plaintiff is entitled to produce record pertaining to SMS referred in the plaint.