SADAQAT ALI KHAN, J. The controversy to be determined is whether a witness, present in Court but not named in the list of witnesses, required to be submitted within prescribed time, can lawfully be examined or not.
2. Petitioner and another being plaintiffs ("plaintiffs") filed suit for recovery of amount Rs.48,00,000/- against private respondents ("defendants").
3. During pendency of the suit, plaintiff(s) produced witnesses on 02.06.2016, 28.09.2016 and 04.10.2016 before learned trial Court well mentioned in its interim orders but without recording their evidence, case had been adjourned on the request of the defendant(s) or otherwise. Interim order dated 04.10.2016 shows that witnesses of plaintiff(s) were present before the Court to record their evidence but case was adjourned on the request of the defendant(s) with a direction that evidence of the witnesses shall be recorded on the next date i.e. 29.10.2016 at 9:00 a.m. On that date (29.10.2016), witnesses were present before learned trial Court to record their evidence but learned counsel for the defendants raised objection that evidence of the witnesses alien to the list of witnesses could not be recorded, whereafter learned Civil Judge accepted the objection vide order dated 18.04.2017 and did not allow the witnesses present in Court to record their evidence being alien to the list of witnesses. Civil Revision filed by the plaintiff(s) against said order was dismissed vide order dated 31.05.2017 by learned District Judge, Rawalpindi.
4. Relevant Order XVI Rules 1 (1) (2) and 7 CPC are hereby reproduced as under:- "ORDER XVI: SUMMONING AND ATTENDANCE OF WITNESSES
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 either to give evidence or to produce documents.
(2) A party shall not be permitted to call 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.
7. Power to require persons present in Court to give evidence or produce document. -- Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power."
5. In view of above, it is crystal clear that embargo under Sub-Rule (2) of Rule 1 of Order XVI CPC (reproduced above) is limited only to the witnesses who are to be summoned through the Court and does not extend to the witnesses who are to be produced voluntarily without involving the summoning powers of the Court, rather parties to the suit can produce their witnesses on their own before learned trial Court to record their statements alien to the list of witnesses required to be submitted within stipulated period under Sub-Rule (1) of Rule 1 of Order XVI CPC (reproduced above).
6. In present case, plaintiff(s) without invoking the provisions of Order XVI Rules 1 (1) and (2) CPC to call witnesses through the Court himself produced them before learned trial Court but both learned Courts below while invoking the provisions of Sub-Rule (2) of Rule 1 of Order XVI CPC which is not applicable in present case did not allow the witnesses of the plaintiff(s) present in Court to record their statements vide impugned orders by committing illegality which are not sustainable.
2020 SCM R 2155 "Amjad Khan Vs. Muhammad Irshad (deceased) through LRs" and 1981 SCMR 150 "The Australasia Bank Ltd. Vs. Messrs Mangora Textile Industries Swat and others".
7. For the foregoing reasons, this writ petition is allowed, impugned orders of both learned Courts below are hereby set-aside and learned trial Court is directed to record the evidence of the witnesses who were present before it on the above said dates if they are produced by the plaintiff(s) and conclude the trial within a period of two weeks from the date of receipt of this order being an old matter lingering on since 12.07.2014.