2022 M L D 121[Lahore]Messrs Sheikh GOODS TRANSPORT COMPANY and others---PetitionersVersusNATIONAL FERTILIZER MARKETING LTD.---Respondent
(a) Civil Procedure Code (V of 1908)---
----O.XVI, R.1---Suit for damages---Respondent's/plaintiff's application seeking permission to produce witness was allowed by Trial Court---Petitioner/defendant contended that name of such witness was not mentioned in the list and no good cause for omission of name was shown---Phrases "good cause" and "reasons to be recorded"---Scope---Validity---Words "or produced" in between the words "call" and "witnesses" were inserted in sub-Rule (2) of R.1 of O.XVI, C.P.C., through the Lahore High Court Amendment dated 02/10/2001---Court could allow production/summoning of the witnesses at a belated stage upon showing of a "good cause" and for "reasons to be recorded"---Application in question sought to produce witness/Deputy Manager Finance to depose and produce record pertaining to the payments made by the respondent and consequential loss/damages suffered due to non-performance of the defendants, and that such record was necessary for a just/fair decision of the case---No cause, whatsoever, was shown by the respondent for its omission to include name of such witness in the list of witnesses---Impugned order stated that application of the respondent was allowed "in the interest of justice" apparently for the reason that the respondent itself was producing the said witness voluntarily, which was an irrelevant consideration since the Lahore High Court Amendment introduced in the R.1(2) of O.XVI, C.P.C.---No findings were recorded on the importance of the witness in the trial, prejudice, if any, caused to the petitioners and inconvenience, if any, caused to the court---Permission to produce witness had been granted as a matter of routine without recording reasons showing judicious application of mind---Revision petition was accepted, impugned order was set-aside and Trial Court was directed to decide the application in question afresh.
(b) Civil Procedure Code (V of 1908)---
----O.XVI, R.1---List of witnesses---Omission to mention name of witness---Granting permission to produce witness at belated stage---"Good cause" and "reasons to be recorded"---Scope---Reason for omission of a name from the list of witnesses had to be legally justifiable to fulfil the requirement of "good cause", and bald claims that it was in the interest of justice or it was to facilitate the court in deciding the matter would not be a legally sufficient reason for that purpose---Such requirement had been imposed apparently to keep a judicial check on unbridled/absolute discretion of the court---What would qualify to be valid reasons for the grant of permission under O.XVI, R.1(2), C.P.C., had been a subject matter of judicial discourse---Primary focus of the Court was to be on the points: firstly, how the permission sought to produce witness not mentioned in the list of witnesses, if not granted, could curtail access to justice of the applicant; secondly, how much administration of justice was likely to be burdened in the proceedings before the court if the permission sought was granted; and thirdly, how the right to fair trial as enshrined in Art.10A of the Constitution would be curtailed by the grant/refusal of such an application---Such a focus would shift away from technical knockout of the litigants for their omissions and inefficiencies.
(c) Civil Procedure Code (V of 1908)---
----O.XVI, R.1 & S.115---Revisional jurisdiction---Application allowed to produce witness not mentioned in the list of witnesses---Interim order---Expression "case decided"---Scope---No appeal was provided in law against an order allowing an application to produce any witness---Remedy of revision against such an order would depend on whether or not it could be termed as a "case decided" and whether it suffered from any illegality or material irregularity in the exercise of its jurisdiction vested in the subordinate court.
(d) Civil Procedure Code (V of 1908)---
----S.115---Revisional jurisdiction---Interlocutory order---Scope---No absolute bar existed against entertaining revisional jurisdiction against an interlocutory order.
(e) Civil Procedure Code (V of 1908)---
----S.115---Revisional jurisdiction---Scope---"Case decided"---Words and phrases---Expression "case decided" was 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.
(f) Civil Procedure Code (V of 1908)---
----O.XVI, R. 1---"Cards on the table"---Principle---Object of R.1(1) of O.XVI, Civil Procedure Code, 1908 was 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 would make necessary preparations for cross-examinations etc. and to prevent any concoction and fabrication of the evidence.
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