ABID HUSSAIN CHA TTHA, J. This constitutional Petition is directed against the impugned order dated 03.11.202 0 passed by the Gas Utility Court, Multan, whereby , an application of Sui Northern Gas Pipelines Limited (the "Respondent" ) seeking permission to submit list of witnesses was held as infructuous by decla ring that special procedure provided in Sub-Sections (10) & (11) of Section 7 of the Gas (Theft Cont rol and Recovery) Act, 2016 (the "Act" ) did not prescribe submission of list of witnesses.
2. Tersely , the Petitioner company instituted a suit for declaration and permanent injunction under Section 6 of the Act with respect to a billing dispute against the Respondent in the Gas Utility Court established under Section 3 of the Act. The Respondent appeared and filed an application seeking leave to defend the suit (the "PLA") under Section 7 of the Act which was granted on 08.02.2018. Issues were framed and list of witnesses and documents along with certificate of readiness was required to be furnished within 07 days by the Gas Utility Court in terms of Order XVI, Rule 1 of the Code of Civil Procedure, 1908 (the "CPC" ). An application under Order XIV, Rule 5 of the CPC filed by the Petitioner was accepted on 06.03.2018 and issues were reframed. List of witnesses and documents with certificate of readiness was again ordered to be furnished within 07 days. Thereafter , the evidence of the Petitioner was recorded. On 08.01.2019, the right of cross-examination of the Respondent was closed. An application filed by the Respondent seek ing to set aside the said order was declined by the Gas Utility Court on 16.04.2019. However , the constitutional Petition of the Respondent was allowed by this Court vide Order dated 29.10.2019 and the right of the Respondent to cross-examine the witnesses of the Petitioner was restored. The evidence of the Petitioner was concluded as depicted vide order dated 23.11.2019 and the Respondent was called upon to produce its evidence on 14.12.2019. At this stage upon the objection of the Petitioner , it transpired that the Respondent had not submitted its list of witnesses. Accordingly , an application under Order XVI, Rule 1 of the CPC was filed on 24.01.2020 by the Respondent seeking permission to submit list of witnesses which was resisted by the Petitioner . During its pendency , another application under Order XIV, Rule 5 of the CPC for framing of additional issues was also filed by the Respondent. Both the applications were decided together through the impugned order .
The application for framing of additional issues was dismissed on merits. The challenge before this Court is limited with respect to the decision of the Gas Utility Court on the application for permission to submit list of witnesses.
3. The Gas Utility Court concluded that the Act is a special law prescribing special procedure for the trial of the suit.
Sub-Sections (10) & (11) of Section 7 of the Act permitted the parties to the lis to file affidavits in respect of examination-in-chief of their respective witnesses, whereafter , the Gas Utility Court is required to record evidence after giving notice to other contesting parties for a particular date for cross-examination and production of documents. This concession to file affidavits ipso facto implies that there is no element of surprise in terms of names of the witnesses and their respective evidence for the other party . Hence, Order XVI, Rule 1 of the CPC does not apply to a suit instituted under Section 6 of the Act and as such, it was not mandatory to submit list of witnesses. Accordingly , the Gas Utility Court disposed of the application seeki ng permission to submit list of witnesses as having become infructuous. Consequently , the Respondent was allowed to produce its witnesses for recording of evidence and production of documents.
4. The questions posed for determination are as follows:
(a) Whether the provisions of the CPC in general and Rule 1 of Order XVI thereof in particular are applicable to a suit instituted under Section 6 of the Act; and
(b) What are the consequences of non-submission of list of witnesses in terms of Order XVI, Rule 1 of the CPC.
5. It would be beneficial to examine the scope and mandate of the Act in terms of scheme of law encapsulated in the Act. The preamble of the Act provide s that it is promulgated for prosecution of cases of gas theft and other offences relating to gas; and to provide a procedure for expeditious recovery and determination of amount due, value of gas, fines, penalties, other outstanding amounts payable, sums due to the Gas Utility Companies and for matters ancillary and related thereto. There is no cavil to the proposition that the Act is a special law enacted to achieve specific objectives. Section 4 of the Act vests exclusive jurisdiction with the Gas Utility Court to deal with all matters covered by the Act. Section 5(1)(a) of the Act expressly and unequivocally stipulates that a Gas Utility Court shall, in the exercise of its civil jurisdiction, have all the powers vested in a Civil Court under the CPC.
Section 5(3) of the Act further provides that a Gas Utility Court shall in all matters with respect to which the procedure has not been provided for in the Act, follow the procedure laid down in the CPC. Section 6 of the Act prescribes a special procedure to institut e a suit for default before the Gas Utility Court. It proclaims that where there are sums due or recoverable from any person, or where a consumer has a dispute regarding billing or metering against a Gas Utility Company , a consumer or Gas Utility Company , as the case may be, may institute a suit before the Gas Utility Court. The special and particular requirements regarding the plaint and procedure of effecting service upon the defendants are also prescribed. Section 7 of the Act envisages a summary procedure for trial of the suit and provides that the defendant is precluded to defend the suit without first obtaining the PLA from the Gas Utility Court. The PLA is require d to be drafted in a form of a written statement listing a summary of the substantial questions of law as well as fact in respect of which in the opinion of the defendant, evidence needs to be recorded. Sub-Sections (10) & (11) of Section 7 of the Act are particularly relevant to address the query which are reproduced as under: "(10). Where the application for leave to defend is accepted, the Gas Utility Court shall treat the application as a written statement, and in its order granting leave shall frame issues relating to the substantial questions of law or fact and subject to fulfillment of any conditions attached to grant of leave fix a date for recording of evidence thereon and disposal of the suit.
(11). Where leave to defend is granted and evidence is to be recorded, the parties may file affidavits in respect of the examination-in-chief of any witness and where such affidavits are filed, the Gas Utility Court shall give notice thereof to the other contesting parties and on the date fixed for recording evidence shall, subject to such modification as may be required for purposes of production and exhibiting of documents or otherwise in accordance with law, treat the affidavit as examination-in-chief and allow the contesting parties an opportunity for cross examination on the basis thereof."
6. An analysis of the scheme of law encapsulated in the Act clearly and manifestly leads to the conclusion that the Act is a piece of special legislation provid ing an expeditious and summary procedure to decide the suits between the consumer and the Gas Utility Company . However , the provisions of the Act make it abundantly clear that apart from the special procedure stipulated therein, the provisions of the CPC are fully applicable and attracted to the suits filed under Section 6 of the Act. The Gas Utility Court is bound to follow the provisions of the CPC in all matters which are not expressly excluded through the provision of special proce dure in the Act. In other words, where the Act does not provide a special procedure to do a particular thing in a particular manner , the provisions of the CPC shall be fully applicable. Once the PLA is granted, it is treated as a written statement as envisioned by the CPC. Summary procedure regarding trial of the suit is converted into an ordinary procedure requiring the Gas Utility Court to frame issues and record evidence as provided in the CPC and Qanun-e-Shahadat Order , 1984 subject to the provisions of the Act. After the grant of PLA, unless the defendant fails to fulfill the condition attached to it, if any, the only concession provided to the parties to the suit is the permission or facility to file affidavits in respect of examination-in-chief of their witnesses. The provision regarding filing of affidavits in lieu of examination- in-chief is only permissive and not mandatory as is evident from the use of word may? in the above quoted statutory stipulations. In case, such affidavits are filed, the Gas Utility Court is empowered subject to such modifications, as it may require for the purposes of producing and exhibiting the documents, or otherwise in accordance with law, to treat the affidavits as examination-in-chief and allow the contesting parties to cross- examine on the basis thereof. It, therefore, follows that there is no express special procedure enlisted in Section 7(10) & (11) of the Act to dispense with the requirement of submission of list of witnesses. The Gas Utility Court misapplied the aforesaid provisions of the Act to hold that facility to tender affidavits in lieu of examination-in-chief dispenses with the requirements of Order XVI, Rule 1 of the CPC, although it had itself required the parties to submit the list of witnesses after framing of issues. Hence, the provisions of Order XVI, Rule 1 of the CPC are fully applicable to a suit instituted under Section 6 of the Act. The Gas Utility Court misapplied and misconstrued the law to hold that the list of witnesses was not required under Section 7(10) & (1 1) of the Act.
7. The second aspect of this case is to examine the consequences of non-submission of list of witnesses by the Respondent within the stipulated period of seven days. Importantly , Sub-Rules (1) & (2) of Rule 1 of Order XVI of the CPC have been substituted by the Lahore High Court, Lahore vide Notification No. 237/Legis/XI-Y -26 dated 15.08.2018 which came into effect from 01.11.2020 vide Notification No. 250/Legis /XI-Y -26 dated 23.10.2020. The substituted Sub-Rules (1) & (2) of Rule 1 of Order XVI of the CPC are reproduced below: "1. Summons to attend to give evidence or produce document.--
(1) The Court shall, immediately after framing of the issues, require the parties to file a list of witnesses in the Court within such period, not later than seven days, as the Court may fix; and
(2) A party shall not be permitted to call witnesses other than those contained in the list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list and the Court shall record reasons for granting permission."
(Emphasis Supplied on bold text)
Prior to the afore-mentioned substitution, the text of Sub-Rules (1) & (2) of Rule 1 of Order XVI of the CPC was couched in the following words: "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, alongwith a list of witnesses whom they propose to call or produce either to give evidence or to produce documents.
(2) A party shall not be permitted to call or produce witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; and if the Court grants such permission, it shall record reasons for so doing.
(Emphasis Supplied on bold text)
8. It is noted that in the text of Rules (1) & (2) of Order XVI of the CPC before its substitution as reproduced above, after the word "call" the words "or produ ce" were conspicuously added by the Lahore High Court, Lahore vide Notification No. 300/Rules/XI-Y -26 dated 02.10.2001 (PLD 2002 Pb. St. 122). The effect and consequences of provisions contained in Sub-Rules (1) & (2) of Rule 1 of Order XVI of the CPC, therefore, need to be examined in terms of substituted and old versions thereof highlighted above.
9. The case titled, "Muhammad Anwar and others v. Mst. Ilyas Begum and others" (PLD 2013 Supreme Court 255) is one of the leading cases on the interpretation of Rule 1 of Order XVI of the CPC. The purpose, rationale and objective behind filing of list of witnesses is manifestly spelt out in paragraph No. 6 thereof, which is reproduced as under:- "The obvious query therefore should be, as to why the legislature from time to time has been introducing the changes in the said rule, the answer is quite straightforward: firstly , that no one should be taken by surprise in the course of the trial of the suit and the parties, before the commencement of the trial, must be conscious, aware and should be fully prepared, as to what kind of evidence is expected to be given by the witness(es) of the opposite side, so that they can make necessary preparations for the cross-examination etc. and secondly , to prevent the concoction and fabrication of the evidenc e and to make up blatant omission(s) by the litigants during the course of the trial, meaning thereby to bind the parties, to such genuine evidence which was/is available to them at the time of the start of the trial, so that they shoul d not subsequently avail stock and fudged witness(es) to make up, their case(s) and the deficiencies. Thus, the interpretation of the noted provisions of law is required to be made in the context of its object as stated above."
The Judgment while concluding that it is mandatory to submit list of witnesses within the stipulated time, held that the list must contain the names of witnes ses to be summoned through process of the Court and private witnesses to be produced by a party itself. The basis of this argument rested on the interpretation of amendment dated 02.10.2001 (supra) with respect to the addition of the words "or produce" after the word "call". In this context, it was observed that the list of witnesses is equally applicable upon the witnesses to be produced by a party itself and those who are required to be called or summoned through the Court. Consequently , if list of witnesses was not filed at all within the stipulated time or the name of a witness was not included therein, the defaulting party was precluded to produce even its own witnesses and record their evidence on the date fixed for recording of evidence.
The deficiency or default was curable only through permission of the Court which in turn, was required to be based on reasons on the touchstone of showing "good cause".
10. Later , the Honorable Supreme Court of Pakistan in case titled, "Amjad Khan v. Muhammad Irshad (deceased) through LRs." (2020 SCMR 2155 ), deliberated on the consequences of non-filing of list of witnesses after examining the overall scheme of law encapsulated in Order XVI of the CPC with reference to a case emanating from an order passed by the learned Islamabad High Court in a Writ Petition. It was importantly held that Order XVI of the CPC is applicable to witnesses proposed to be summoned through Court to give evidence or to produce documents. The scope of Order XVI of the CPC does not extend to private witnesses of a party proposed to be produced voluntarily without invoking the summoning powers of the Court. The conclusion was based on the premises that since the purpose of list of witnesses is to eliminate the element of surprise and to protect the sanctity of available evidence, therefore, the evidence of private witnesses cannot be refused to be recorded since it is based on pleadings and / or documents contained in the list under Order VII, Rule 14 of the CPC or produced in terms of Order XIII, Rule 1 of the CPC. Conversely , the oral and documentary evidence of the witnesses summoned through the process of the Court are not bound by pleadings and may introduce new elements in the case necessitating prior notice to the other side. It was also obse rved that Muhammad Anwar Ali case (supra) was based on interpretation of an amendment dated 02.10.2001 by the Lahore High Court, Lahore which was applicable to the Province of Punjab, whereby , the words `or produce? were added after the word `call? in Rule 1 of Order XVI of the CPC and the said Judgment was rendered in peculiar context of that amendment.
Hence, it was held that evidence of private witnesses can be recorded if they are produced and are in attendance on the day fixed by Court for recording of evidence.
11. The substituted Sub-Rules (1) & (2) of Rule 1 of Order XVI of the CPC currently in place in the Province of the Punjab are in line and in complete harmony with the law laid down in Amjad Khan case (supra). The bare reading thereof, underlines that in Sub-Rule (1) thereof, there is no distinction between witnesses to be produced by a party itself or witnesses required to be called through the Court as is evident from the conscious omission of the words `produce? and `call?. Sub-Rule (2) thereo f, restricts itself to the witnesses to be called and summoned through the Court as is evident from the use of the word `call? and omission of the word `produce?. Accordingly , the following conclusions are drawn regarding the applicable substituted version of Sub-Rules (1) & (2) of Rule 1 of Order XVI of the CPC:
(i) The list of witnesses shall include the names of all witnesses including private witnesses to be produced by a party itself and witnesses to be called or summoned through process of the Court;
(ii) In case of non-submission of list of witnesses or omission of name of a witness, the defaulting party is not barred to produce private witnesses to give evidence or produce documents provided they are produced on the date fixed by Court for recording of evidence; and
(iii) In case of non-submission of list of witnesses or omission of name of a witness, the defaulting party is barred to call or summon any witness through process of the Court to give evidence or produce documents unless the Court upon showing good cause permits to call or summon a witness after recording reasons to this ef fect.
12. The third facet of this case pertains to determine the applicability of substituted version of Rule 1 of Order XVI of the CPC. The suit and application for permission to submit list of witnesses were filed on 29.11.2017 and 24.01.2020, respectively yet the impugned order was passed on 03.11.2020 when the amendment dated 15.08.2018 (supra) had come into effect on 01.11.2020. Since the amendment in the form of substitution in Order XVI, Rule 1 of the CPC is procedural, beneficial and curative in nature which was enforced before decision of the application, therefore, the substituted text of Order XVI, Rule 1 of the CPC was fully applicable in the instant case.
For reference see, cases titled, "Malik Gul Hasan & Co. and 5 others v. Allied Bank of Pakistan" (1996 SCMR 237); "Adnan Afzal v. Capt. Sher Afzal" (PLD 1969 Supreme Court 187); and "Noor Muhammad v. Additional District Judge, Chakwal and 7 other s" (PLD 1994 Lahore 170), wherein, it was authoritatively held that procedural amendments in a statute are given retrospective effect unless contrary is provided expressly or impliedly or it affects rights or causes injustice or prejudice. Mode of trial and rule of evidence are always considered a part of procedure unless it shift burden of proof. The substituted version of Order XVI, Rule 1 of the CPC does not cause any inconvenience or injustice to the parties. It does not affect or prejudice any existing right.
Rather , it promotes justice without any consequential embarrassment or detriment to any of the parties. Therefore, the substituted Order XVI, Rule 1 of the CPC is fully applicable to the instant case.
13. It is not case of the Respondent that it required to summon any witness throu gh the process of the Court. All the witnesses were private witnesses of the Respondent. As such, the Respondent could produce its witnesses for recording of evidence and production of documents before the Gas Utility Court on the date fixed for recording of evidence.
14. Although this Judgment is based on completely different premises yet the decision of this Court is in accordance with the relief accorded to the Respondent by the Gas Utility Court. Moreover , as a normal rule, the lawful exercise of discretion by the Courts below is not interfered with by this Court in exercise of constitutional jurisdiction conferred under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Even otherwise, the scope and mandate of the Act, as special law, discourages unnecessary interventions through exercise of constitutional jurisdiction which may disrupt smooth proceedings of the trial. Needless to state that non- filing of list of witnesses within the stipul ated time is even otherwise condonable on the yardstick of good cause shown to the Court by the party claiming such relief. For reference, see Amjad Khan case (supra); and case titled, "Shumaila Mehmood v . Additional District Judge and 4 others" ( 2020 CLC 10 ).
15. In view of the above discussion, it is concluded that:
(i) The provisions of the CPC are applicable to a suit instituted under Section 6 of the Act in all matters where the provisions of the Act do not prescribe a special procedure regarding any aspect of the trial;
(ii) The Respondent was required to submit list of witnesses as provisions of Order XVI, Rule 1 of the CPC is applicable to a suit under Section 6 of the Act; and
(iii) The non-submission of list of witnesses does not bar the Respondent to produce its own witnesses for recording of evidence and production of documents on the date fixed by the Gas Utility Court for recording of evidence.
16. Accordingly , this Petition is dismissed .