' This is a revision petition calling in question order passed by a learned trial Judge whereby the petitioners' (defendants) application for examination of certain witnesses was allowed only partially.
2. The petitioners had failed to submit a list of witnesses after the framing of the initial issues within the stipulated period, as provided in rule 1 of Order XVI, C.P.C. Subsequently. An additional issue was framed. The learned Judge permitted examination of the witnesses mentioned in the list submitted after the framing of the additional issue to the extent of the said issue only and observed that "no permission can be granted to the defendants to produce any witnesses mentioned in the present list regarding the issues already framed on 20th April, 1978".
3. The admitting order of this petition reads as follows :- "The tenor of the impugned order shows as if the learned Judge was under an impression that he had no discretion to allow the submission of the list submitted beyond time qua framing of the issues for the first time. It appears the learned Judge was not made aware of very wide powers under sub-rule (2) of rule 1 of Order C.P.C. To permit the examination of those witnesses also who are not mentioned in any list. The only limitation is that there should be a good cause for giving such a permission, Learned counsel has contended that the same witnesses who would be examined by the learned Court in connection with the additional issue could be also examined when once summoned/produced to depose in Court, with regard to the earlier framed issues as well. It is argued that the time of the Court would not be consumed unnecessarily. This, it is further argued, prima facie could be a good cause for permitting the petitioners to examine the witnesses with regard to the earlier issues as well. These questions require examination,"
4. Learned counsel for the petitioners has reiterated the points noted at the motion stage. Learned counsel for the respondents, relying on K. M. Sadiq v. Volkart (Pak.) Ltd., Karachi has opposed the revision petition.
5. In sum and substance, the impugned order visualizes that even if a person in the witness-box is to be examined on one issue by the party producing him, the Court would not permit the same party asking questions from the same witness with regard to other issues. It would undoubtedly create an anomalous position and that too, on the bar of a mere technicality. If the opposite-party can question such a witness with regard to the remaining issues, provided the other conditions for putting such questions are satisfied, it is incomprehensible as to why the party producing the witness should not be able to put questions on the other issues. It needs to be emphasized that the amended provision contained in rule 1 of Order XVI was not intended to be used in a hyper- technical manner or as a device to trap a party as an offender; nor was it intended as a contrivance to withhold opportunity of hearing to a party for a mere technical default. It provided only a procedure and mechanism for examination of witnesses and was undoubtedly intended to avoid unnecessary delays. But that would not mean that the framers of law, in any way intended to withhold right of a party to the ordinary but otherwise comprehensive procedures and protections provided by the Code. It was in this context and in order to remove the mischief that the framers of law provided, as a safeguard in sub-rule (2) of rule 1, that the Court had the power to call those witnesses as well who could not be examined on account of non-observance of sub-rule (1) regarding sub- ' ;mission of list, on the defaulting party "showing good cause for the omission". And if such a permission is granted, the only further limitation was that the Court shall record reasons for so doing. The reasons qua good cause can be innumerable and of various shades. The Court has wide discretion in this behalf. For example, in this very case, the fact that the witnesses are to be examined in connection with an additional issues and permission has been granted in that behalf, is a good cause and good reason for permitting the party producing such witnesses to examine them with regard to the earlier issues as well qua which the default on non-submission of the list had been committed. It appears that the learned Civil Judges are not conscious of the wide power given under sub-rule (2) for the exercise of which, as already observed, there are no insurmountable hurdles provided, of course, it is the demand of justice in the case concerned . The ruling cited by the learned counsel for the respondents is distinguishable with particular reference to the scope of the powers of the Court under sub-rule (2) of rule 1.
6. In the light of the above discussion, the impugned order is not sustainable. The same is set aside.
The petitioners shall be permitted to examine the witnesses mentioned in the list submitted after the framing of the additional issue, with regard to the subject-matter of the earlier issues as well, provided such examination is not prohibited by any other provision of law. There shall be no order as to costs. 1979 CLC 291