2014 C L C 1478

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

MUKHTIAR ALI SHAH----Petitioner

Versus

FAZAL MIR and 2 others----Respondents

Writ Petition No.74-B of 2014, decided on 27th March, 2014.

(a) Civil Procedure Code (V of 1908)---

----O. XVI, Rr. 1 & 2---Khyber Pakhtunkhwa Pre-emption Act (X of 1987), S.13---Constitution
of Pakistan, Art.199---Constitutional petition---Pre-emption suit---Summoning of witness whose
name was not included in the list of witnesses---"Good cause"---Scope---Names of witnesses
sought to be summoned were not included in the list of witnesses filed by the plaintiff---List of
witnesses of plaintiff was submitted through counsel and he was aware of the witnesses to be
produced for evidence and production of documents to prove the case---Parties had to furnish list
of witnesses whom they proposed to call either to give evidence or to produce document within
seven days of framing of issues and no witness could be summoned by the court except the
witness whose name appeared in the list submitted in the court---Party had to show "good cause"
for the omission with regard to inclusion of name of witness in the said list for summoning him
through court---Present application for summoning of witnesses through process of court was
without any cogent reason and "good cause"---Pre-emption suit was like a criminal case and no
omission could be allowed to be supplied by means of amendment, addition, strike off, make of
default and delinquency---Principle of law could not be used as an instrument to avoid, shun or
defeat the specific provision of law and save the party from consequences of his delinquency
against the clear command of law----No error was found in the impugned judgment and order
passed by the revisional court---Constitutional petition was dismissed in circumstances.

1981 SCMR 150; PLD 1992 SC 811; 2004 SCMR 1367; 2005 CLC 325 and 2011 CLC
569 ref.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 and
Ghulam Yasin and others v. Ajab Gul 2013 SCMR 23 rel.

1981 SCMR 150; PLD 1992 SC 811; 2004 SCMR 1367; 2005 CLC 325 and 2011 CLC
569 distinguished.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Scope---Plaintiff was legally bound to prove factum of

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performance of Talb-i-Muwathibat and Talb-i-Ishhad in prescribed manner according to law
within the time limit.

Abdur Rashid Khan Marwat for Petitioner.

Sardar Naeem for Respondent.

Date of hearing: 27th March, 2014.

JUDGMENT

MUHAMMAD DAUD KHAN, J.--- Impugned herein is the judgment and order dated
7-2-2014 rendered by learned District Judge, Bannu, whereby the revision petition filed by the
respondent/defendant against the order dated 26-9-2013 handed down by learned Civil Judge-XI,
Bannu was accepted and resultantly the application of the petitioner/plaintiff for permission to
include the witnesses and summoning thereof, was dismissed.

2. The facts in brief leading to filing of instant petition are that petitioner has filed a pre-
emption suit qua sale Mutation No.1103 attested on 25-10-2011 against the
respondent/defendant. The averments of the petitioner/plaintiff made in Para-III, of the plaint are
that:---

When put on notice, the respondent/defendant contested the suit by submitting written
statement. On divergent pleading of the parties, issues were framed. Parties were directed to
submit their respective list of witnesses. Petitioner/plaintiff on 4-5-2012 submitted his list of
witnesses consist of Patwari Halqa, Umar Shah son of Aqleem Khan, Muhammad Raza Khan
son of Ghulam Hassan and himself, whom he proposed to call, to record evidence and to produce
documents. During the course of recording evidence, on 18-5-2012 the petitioner/plaintiff moved
an application for summoning of Registry Moharrir Post Office concerned through the process of
Court, being necessary to prove factum of notice Talb-e-Ishhad. Subsequent to that application
another application was moved by the petitioner/plaintiff for the permission to record statement
of scribe of the alleged notice Talb-e-Ishhad, the NOK, Kalimullah son of Rahmanullah and Dil
Nawaz Khan son of Khalilur Rehman of Mndan District Bannu. Both the applications were
resisted by the respondent/defendant but the learned Civil Judge-XI, accepted both the
applications of the petitioner/plaintiff vide order dated 26-9-2013 and he was directed to deposit
diyat money and summoned the witnesses accordingly. The respondent/defendant challenged the
aforesaid order through revision petition which was accepted vide judgment and order dated 7-2-
2014 by learned District Judge, Bannu, hence this writ petition.

3. Mr. Abdur Rashid Khan Marwat Advocate, learned counsel for the petitioner/plaintiff
contended that the witnesses sought to be summoned by the petitioner are material and necessary
for the just decision of case on merits. He further submitted that provision of Order XVI, Rule 1,
C.P.C, allowing a party to call witnesses, not included in the list of witnesses, must be construed
liberally to enable the parties to produce their evidence and save them from technical knock-out.
He further contended that for the purpose of dispensation of justice, technicalities should not be
allowed to impede and prejudice the rights of the parties. He lastly argued that the trial court had

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allowed the application for summoning of witnesses of the petitioner/ plaintiff for valid reasons,
therefore, such order should not have been interfered with by the District Judge in exercise of its
revisional jurisdiction. The learned counsel for the petitioner/plaintiff relied on the case-laws,
1981 SCMR 150. PLD 1992 SC 811. 2004 SCMR 1367; 2005 CLC 325 and 2011 CLC 569.

4. Conversely, learned counsel for the respondent/defendant opposed the arguments of

learned counsel for the petitioner/plaintiff and supported the impugned order.

5. We have heard arguments of learned counsel for the parties and gone through the record
appended with the petition.

6. Admittedly the names of witnesses in both the applications sought to be summoned were
not there in the list of witnesses filed by the petitioner/plaintiff in terms of Order XVI, Rule 1,
C.P.C. The list of witnesses of plaintiff was submitted through counsel and he might know the
required witnesses for evidence and production of documents, to prove its case required by pre-
emption law. Be that as it may, in order to resolve the proposition, it is necessary to reproduce
the relevant law i.e. Order XVI, Rule 1, C.P.C., which reads as below:---

"1. Summons to attend to give evidence or produce document.--- (1) Not latter than seven
days after the settlement of issues, the parties shall present in Court a certificate of readiness to
produce evidence, along with 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.

(3) ……………………………………………………………………………."

Perusal of the above provision of law stipulates the parties to furnish lists of witnesses,
whom they propose to call either to give evidence or to produce the document, within seven days
of framing of issues, that the process and the authority of court to call and summon the witnesses
by a party has been subject to, rather conditional to the list of witnesses which a party is mandate
to file in terms thereof. The power and the machinery of the court and law, as is envisaged by
certain subsequent relevant rules of Order XVI, C.P.C. can only be revoked, if such a list has
been provided and not otherwise. From Sub-Rule 2 of the aforesaid Order XVII, the intention of
legislation is fortified, as specific prohibition has been placed preventing the party to call the
witnesses.

7 Undoubtedly this is a mandatory provision of law, as it entails serious consequences of

precluding a party from calling through aid of court. Though a room has been provided to a
delinquent party to make up its default and delinquency and ask for the indulgence of the court to
summon and produce the witnesses after showing 'good cause' for omission of the said witness
from the list.

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8. The Order XVI, Sub-Rule (2) can validly be bifurcated into two parts, firstly, it has been
made incumbent upon a party, rather a duty has been cost upon the delinquent party to show
"good cause" for omission to file the list of witnesses or the name of a particular witness and the
second part is meant to regulate the power, authority and discretion of the Court. For the purpose
of comprehending the first part, it is necessary to ascertain the expression of "good cause"
mentioned in the said Rule. The honourable Supreme Court of Pakistan in case titled
"Muhammad Anwar and others v. Mst. Iliyas Begum and others" (PLD 2013 SC 255)
ascertained the true meaning and expression of "good cause" explaining in the following words:-
--

"For the purpose of comprehending the first part, it shall be relevant to ascertain the true
meaning of the expression 'good cause' which according to Black's Law Dictionary Eighth
Edition means "A legally sufficient reason. Good Cause is often the burden placed on a litigant
(usu. By court rule or order) to show why a request should be granted or an action excused---
Also termed good cause shown; just cause; lawful cause; sufficient cause". Whereas, according
to the said dictionary "sufficient cause" bears the same meaning as "good cause" and thus both
the words can be held to be considerably analogue and interchangeable expressions, yet as per
the precedent law, 'good cause' has been construed in wider terms than 'sufficient cause'. Though
no hard and fast, and absolute criteria can be set forth, as benchmark, to test, if a cause of
omission to file the list of witnesses or a name in such list is on account of `good cause', as it
depends upon the facts of each case, however, the party in default has to show a legally sufficient
reason, why a request should be granted or the inaction/omission should be executed, in other
words, the Judicial conscious of the Court should be satisfied with justifiable reasons. In any
cause, a party in default cannot, as a matter of right or as a matter of course without assigning or
establishing any good cause for the omission, ask for the calling/summoning or even to produce
the witness(es) only on account of a lame excuse/reason and a bald assertion that, it shall be in
the interest of justice and/or it shall facilitate the Court in deciding the matter."

9. In the instant case application for summoning witnesses through process of court is
without mentioning any cogent reason and absolutely lack of "good cause" specially when the
petitioner/plaintiff is pre-emptor and legally bound to prove factum of performance of Talb-e-
Muwathibat and Talb-e-Ishhad in prescribed manner according to law within the time limit.
Perusal of list of witnesses of the petitioner/ plaintiff reveals that it was submitted through
learned counsel for the petitioner/plaintiff and certainly he was conscious at the time of such
submission of list that Clerk Post Office, Postman and Scribe of the Notice Talb-e-Ishhad were
necessary to prove the factum or performance of talbs.

10. Since the pre-emption suit, under well-settled precedential law is more like criminal case,
no omission, howsoever fatal it may be, can be allowed to be supplied by means of amendment,
addition, strike off, make up its default and delinquency. In case it is done by means of above, it
would open room for additions, afterthought improvements, wisdom can be taken from the
judgment of august Supreme Court of Pakistan in the case "Ghulam Yasin and others v. Ajab
Gul" 2013 SCMR 23(c) observed as under:---

"Quite apart from this since a pre-emption case under the latest dispensation is more like
a criminal case and a plaint in the former is almost like an F.I.R. in the latter, no omission

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however, fatal it may be, can be allowed to be supplied by means of amendment. In case it is
done by means of amendment, it would open room for additions, afterthoughts and
improvements which would go adjourned infinitum. Neither the pre-emption nor the criminal
case with this modus operandi would admit of an end in the mundane existence of the parties."

11. The learned counsel for petitioner/plaintiff has relied upon; 1981 SCMR 150, it was suit
of recovery of a loan and the Bank had been nationalized and officers of the bank who were
aware of the facts of case, could not easily traced due to transfer from place to place and had
retired and one of them died; PLD 1992 SC 81, It was a case of additional evidence in the case of
inheritance under Order XLI, Rule 27 C.P.C. 2004 SCMR 1367 in this case the Hon'ble Supreme
Court held that permission any granted if "good cause" for omission of the witness from the list
is shown and 2012 CLC 569, in this case the witnesses were mentioned in the list of witnesses at
serial Nos.6, 10 and 13, hence, the facts of all the case-laws referred by learned counsel for the
petitioner are altogether different and has no nexus with the facts and circumstances of the
instant case.

12. The other contention of learned counsel for the petitioner/ plaintiff that for the purpose of
dispensation of justice technicalities should not be allowed to impede the rights of parties. We
are afraid and not agree with the view of learned counsel for petitioner, as above principle of law
cannot be used as an instrument to avoid, shun or defeat the specific provision of law and save
the party from consequences of its delinquency against the clear command of law.

13. In light of above, we do not find any error in the impugned judgment and order of
revisional court of District Judge Bannu calling for interference in the constitutional jurisdiction
of this Court. The petition, therefore, has no merit which is hereby dismissed.

AG/235/P Petition dismissed.