It is noteworthy that the words “or produced” in between the words “call” and “witnesses” were inserted in sub-rule (2) of rule 1 of Order XVI C.P.C. through the Lahore High Court Amendment dated 02.10.2001Notwithstanding the above restriction imposed by Lahore High Court amendment in rule 1(2) of Order XVI C.P.C.,

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No appeal is provided in law against an order passed by a trial court allowing an application to produce any witness. The remedy of revision under Section 115 C.P.C. against such an order depends on whether or not it can be termed as a “case decided” and whether the order impugned suffers from any illegality or material irregularity in the exercise of its jurisdiction vested in the subordinate court. The expression “case decided” is not necessarily confined to a final order, rather it may, in particular facts and circumstances of the case, relate to an interlocutory order passed at any stage of the proceedings including an interim order requiring application of mind. An order passed in an improper exercise of jurisdiction, if not interfered with, may lead to an injustice or hardship when an interim order from its very inception appears to be or has an effect of the final order. Therefore, there is no absolute bar against entertaining revisional jurisdiction against an interlocutory order.

A literal reading of rule 1 of Order XVI C.P.C. above suggests that in sub-rule (1) an obligation has been upon the litigants to provide a certificate of readiness to produce evidence, along with a list of witnesses whom they propose to call either to give evidence or produce documents within seven days after settlement of issues. Sub-rule (2) consists of two parts: first one stipulates a restriction on a party to the litigation to call or produce witnesses other than those contained in the said list; the second part creates an exception to the restriction contemplated in the first part whereby a discretion has been conferred upon the court to grant permission to call or produce any witness. The applicant seeking permission of the court is required to show good cause for the omission of the said witnesses from the list and the court granting permission has an obligation to record reasons for so doing.

The object of rule 1(1) of Order XVI C.P.C. is that no one should be taken by surprise in the course of the trial and parties, before commencement of trial, must be conscious, aware and fully prepared as to what kind of evidence was expected to be given by the witness of the opposite side so that they make necessary preparations for cross examinations etc. and to prevent any concoction and fabrication of the evidence.5 The above approach is quite similar to the one prevailing in the courts of England and Wales where litigation is conducted on the principle of “cards on the table”. This means that parties to litigation have an obligation to disclose to the other side, at the appropriate point in time, all the evidence it holds which either assists its own case or assists the other side's case. Their objective is to ensure that the litigation is run as efficiently, cost-effectively and proportionately as far as possible.

It is noteworthy that the words “or produced” in between the words “call” and “witnesses” were inserted in sub-rule (2) of rule 1 of Order XVI C.P.C. through the Lahore High Court Amendment dated 02.10.2001Notwithstanding the above restriction imposed by Lahore High Court amendment in rule 1(2) of Order XVI C.P.C., it is still open for the court to allow production or summoning of the witnesses at a belated stage upon showing of a “good cause” and for “reasons to be recorded”. No absolute criteria could be set as a benchmark to test if a case of omission of a name from the list of witnesses was on account of “good cause”, however, the reason must be legally justifiable and bald claims that it shall be in the interest of justice or it shall facilitate the court in deciding the matter would not be a legally sufficient reason for that purpose.11 13. Likewise, rule 1(2) of Order XVI C.P.C. requires the court to record reasons for the exercise of its discretion. Such requirement has been imposed apparently to keep a judicial check on unbridled and absolute discretion of the court. What qualifies to be valid reasons for the grant of permission under rule 1(2) ibid has been a subject matter of judicial discourse. One view in such discourse is that reasons to be recorded by the trial court for the permission granted under the said rule must be confined to the “good cause” shown (i.e. the explanation advanced) by the party for the omission to include name of witness sought to be called or produced.

The other end of the spectrum of this discourse takes a broader view by liberating the reasons to be recorded by the trial court from the confines of explanation furnished by the litigant for the omission of the name of a witness in the list and includes elements such as importance of the witness in the trial; prejudice, if any, to the opposite party; and inconvenience of the trial court.

The primary focus of such a view appears to be on how the permission sought, if not granted, may curtail access to justice of the applicant, how much administration of justice is likely to be burdened in the proceedings before the court if the permission sought is granted, and how the fair trial right as enshrined in Article 10A of the Constitution, shall be curtailed by the grant or refusal of such an application. The focus surely shifts away from technical knockout of the litigants for their omissions and inefficiencies.