' Hamesh Gul and others, petitioners/plaintiffs filed suit against the respondents for the recovery of Rs,34,21,577 as damages in the Court of learned Senior Civil Judge, Peshawar. The said suit was resisted by the respondents by filing written statement. The learned trial Court framed issues. The petitioners filed their list of witnesses but respondents/defendants failed to file their list of witnesses. The petitioners examined their witnesses. The respondents wanted to examine their witnesses to which the petitioners objected. The learned trial Court vide order dated 27-2-2003 allowed the respondents/defendants on payment of costs of Rs,500 to examine the witnesses.
Feeling aggrieved with the said order the revision petition in hand was filed by the petitioners/plaintiffs,
2. Mr. Muhammad Javed Yousafzai, the learned counsel representing the petitioners argued that under Order XVI, rule 1, C.P.C. It was the duty of the parties to file list of witnesses within 7 days after the settlement of issues. Since the respondents/defendants had failed to file list of their witnesses, therefore, they could not examine their witnesses, the list of whom was not available on file and the impugned order whereby the respondents/defendants had been allowed to examine their witnesses was illegal, hence needs reversal. Reliance in this regard was placed on Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq and 2 others (1999 SCMR 799).
3. The argument of the learned counsel for the petitioners has no force at all. No doubt under Order XVI, rule 1, C.P.C. It was mandatory for the parties to present in Court a list of witnesses whom they proposed to call either to give evidence or to produce evidence within 7 days after settlement of issues. Under rule 2 of Order XVI, C.P.C. a party could not be permitted to call witnesses beyond the list so submitted except with the permission of the Court to be secured on showing good cause for omission, which permission should be supported by recording reasons therefor. In sub-rule (3) of rule 1 of Order XVI, C.P.C. If a party wanted the assistance of the Court to require the attendance of any witness, it could apply to the Court to obtain summons for attendance of such witnesses. If the service was sought to be effected through Court under rule 8, the application must be made not later than 14 days before the date of hearing.
4. The word "call" occurring in rule 1 of Order XVI, C.P.C. Is of great significance, it would mean call of witnesses under the authority of Court regarding which the list has to be presented within 7 days of settlement of issues. A similar question came up for hearing before the Lahore High Court, in Ghulam Murtaza v. Muhammad Ilyas and 3 others (PLD 1980 Lahore 495), in which while interpreting the word "call" it was held:-- "Call of witnesses under the authority of the Court regarding which the list has to be presented within 7 days of the settlement of issues."
5. The said construction of the word "call" was approved by august Supreme Court of Pakistan in Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq (1999 SCMR 799), wherein it was held:-- "Only those witnesses could be called or produced in evidence, regarding which a list has been presented within 7 days of settlement of issues."
6. The perusal of the provisions of Order XVI, Rule 1 and the above quoted judgments would show that if any of the parties failed to present list of witnesses, it could 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.
7. The provisions of Order XVI, rule 7, C.P.C. Show that the Court was empowered to direct a person/persons present in Court to give deposition even though he/they may not have been named in the list of witnesses submitted under Order XVI, rule 1, C.P.C.
8. Rule 14 of the Order XVI, C.P.C. Also confers wide powers upon the Court to summon of its own accord even strangers to suit as witnesses to give evidence or to produce any document in his presence on a date to be appointed and the Court has powers to examine him or required him to produce such document.
9. In the case in hand the learned trial Court had allowed the respondents/defendants on payment of costs of Rs,500 to examine their witnesses who were present in Court. The learned counsel has not committed any illegality or any irregularity warranting interference. We, therefore, dismiss the revision petition in hand in limine.