' Fazale Haque petitioner, who has instituted this suit for specific performance of agreement of sale, dated 26-3-1982 in respect of property bearing No. S-II-2-S.2, Hospital Road, Lahore, against the respondent, has challenged order, dated 23-12-1984 passed by the learned trial Court, where the respondent was allowed to summon handwriting expert as a witness and order, dated 15-1-1985, where petitioner's objection against the summoning of the aforementioned witness through Court as rejected, through the present revision petition.
2. The petitioner's contention is that the respondent had failed to submit list of witnesses within the prescribed time after the settlement of issues as provided in Order XVI, rule 1, C.P.C. On 18-12-1984 the respondent, while submitting a list of his witnesses in Court, prayed that the handwriting expert, who was a Government employee, should be summoned through the Court and that the other witnesses would be produced by him at his own responsibility. The above application was placed before the learned trial Judge on 23-12-1984, who according to the petitioner mechanically put his signatures under the word "allowed" written by the Reader of the Court. The petitioner has assailed the order on the ground that it is not a speaking order and that it is against the provisions of Order XVI, rule 1(2), C.P.C. inasmuch as no reasons have been recorded by the trial Judge while allowing permission to the respondent to summon the handwriting expert as a witness through the Court.
On 15-1-1985 when the case was adjourned by the learned trial Judge to 19-1-1985 for recording the respondent's evidence the petitioner raised an objection that the handwriting expert should not be summoned through the Court as the respondent had not submitted the list of witnesses within the prescribed time nor had he stated any sufficient cause in his application for summoning the afore - mentioned witness through the Court. The learned trial Judge after hearing the parties' counsel rejected the petitioner's objection and observed that the handwriting expert was an important witness and his evidence was necessary in the case. It was also stated in the order by the learned trial Judge that the witness had already been summoned through Court and in fact he was present in Court on 14-1-1985 but his statement could not be recorded as the case was transferred to his Court.
3. Learned counsel for the petitioner has submitted that order, dated 23-12-1984 is in fact no order in the eyes of law and that the handwriting expert, who had appeared in Court on 14-1-1985 in pursuance of the aforementioned order of the Court could not be examined as a witness in view of the mandatory provisions of sub-rule (2) of rule 1 of Order XVI, C.P.0 . Learned counsel for the petitioner has relied on Barket Ali v. Ghulam Hussain 1984 CLC 1521 and Abdul Jalil v. Mansoor Ahmad 1980 CLC 1815. He has also referred to the Full Bench decision of this Court in Ghulam Murtaza v. Muhammad Ilyas PLD 1980 Lah. 495 where the provisions of Order XVI, rule 1, C.P.C. were examined in detail.
4. Learned counsel for the respondent, while conceding that the list of witnesses was not filed by the respondent within the prescribed time, has submitted that the reason for not filing the list of witnesses was that the respondent did not want any witness to be summoned through Court' as he had chosen to bring his witnesses alongwith him in the Court on the date when their statements were to be recorded. It was only after the learned trial Court had granted permission to the petitioner to examine handwriting expert as a witness that the respondent also felt the necessity of examining the handwriting expert from the Finger Prints Bureau who had already examined the questioned document and had submitted his report in Court. He, therefore, included the name of the handwriting expert in the list of his witnesses and made request to the Court for summoning him through Court. It is true that the respondent did not state reasons for summoning the witness through the Court in the petition and the Court granted permission to t respondent to summon the handwriting expert as witness through t Court without giving any reason in its order dated 23-12- 1984 but the matter was re-considered by the Court when an objection was raise on behalf of the petitioner on 15-1-1985 and after hearing the parties counsel the Court had found that the examination of the handwriting expert as a witness was necessary in the case and that he could be summoned through Court for the next date of hearing. Learned counsel for the respondent has stated that the handwriting expert had appeared in Court on 19-1-1985 but his statement was not recorded at the request of the petitioner's counsel and the case was adjourned to the following date for recording his statement after the petitioner had paid the necessary expenses of the witness.
5. There is no doubt that order, dated 23-12-1984 whereby the respondent's prayer to summon the handwriting expert as witness through the Court was allowed is not a speaking order and that it also doe not fulfil the requirements of sub-rule (2) of rule 1 of Order XVI C.P.C., but in the subsequent order, dated 15-1-1985 learned Judge to whom the case had been transferred by the District Judge, ha considered the matter as to whether the witness should be allowed t be summoned through the Court or not because the petitioner has raised objection that the respondent was not entitled to summon th witness through Court as he had failed to file the list of witnesse within the prescribed time. The learned trial Judge found that the hand writing expert was an important witness and that it was necessary the his statement should be recorded. It seems that one of the consideration which must have weighed with the learned Civil Judge for allowing the respondent to examine the handwriting expert was that the petition had also been permitted to examine a handwriting expert as witness o an application submitted by him in that behalf. The respondent h: opposed the petitioner's above application and had submitted that t handwriting expert from the Finger Print Bureau who had already' examined the questioned document and had submitted his report Court could not be examined as a witness in the case. The reason given by the learned trial Judge in his order, dated 15-1-1985 f re-summoning the handwriting expert through Court is justified by t circumstances of the case noticed above and the requirement of sub-rule (2) of rule 1 of Order XVI, C.P.C. has been met. It may be notice that the bar against the calling of a witness through the Court, who name does not appear in the list of witnesses filed by a party, is n absolute because the Court has power to allow a witness to be summone whose name is not included in the list of witnesses, if good cause f. the omission of his name from the list has been shown by the part In the present case the respondent did not submit the list of witness within the prescribed time as he had no intention of summoning an witness through the Court. It was at a later stage when the petition was allowed to examine a handwriting expert that the respondent four it necessary to produce the handwriting expert who had already examine the questioned documents. The learned trial Judge has properly exercise his discretion in permitting the respondent to call the handwriting expert as witness through the Court. His testimony would be certainly helpful for determining the genuineness or otherwise of the questioned document. During the course of the hearing of the revision petition the statement of the handwriting expert summoned by the respondent as a witness was allowed to be recorded by the trial Court and now the only question before this Court is whether the statement so recorded may be allowed to be read in evidence or not. Since the examination of the witness has been found necessary by the trial Court as stated in the impugned order, dated 15-1-1985 there is no justification for discarding his testimony particularly when the permission granted to the respondent to summon him through Court appears to be just and fair and does not suffer from any legal infirmity.
' For the foregoing reasons there is no force in this revision petition, which is hereby dismissed with costs.