2023 YLR 431
It is an admitted position that the list of witnesses of both the parties were filed and the name of proposed witnesses mentioned in the Application to be summoned were not mentioned in the list of witness of the Petitioner/Plaintiff and as per provision of sub-Rule (2) of Order XVI Rule 1 CPC the intention of the legislature is that as per Order XVI Rule 1 CPC the party can only call those witnesses to whom it propose to call either to give evidence or to produce the documents. According to sub-Rule (2) the intention of the legislature is augmented, as a specific prohibition has been placed, preventing a party to call the witnesses and, as per the Lahore High Court Amendments even to produce witnesses other than those whose names are mentioned in the list required to be filed under sub-Rule (1). Undoubtedly, this is a mandatory provision of law as entails serious consequences of precluding a party from calling, through aid of Court, or even to produce the witnesses if their names do not appear in the requisite list, in terms of sub-Rule (2) of Rule 1 of Order XVI CPC a delinquent party who omits the name of witnesses is allowed to make up his default and seek indulgence of the Court to summon and produce the witnesses but only after meeting and fulfilling the condition of good cause for the omission of the said witnesses from the list.
According to the mandate of law Court is bound to record reasons for such a permission. Therefore, in terms of law the Court can only record reasons for permission if the subsequent Application exhibits good cause for an earlier delinquency. The wisdom of public policy and law in this regard is that an adversary should not be taken by surprise in the course of trial of the suit and the parties before the commencement of trial, must be aware and should be fully prepared as to what kind of evidence is accepted to be given by the witnesses of the opposite side, so that they can make necessary preparation for the cross examination. The wisdom of law also targets to prevent the concoction and fabrication of evidence and to make up the litigants during the course of trial, meaning thereby to bind the parties to such genuine evidence which is available to them at the time of initiation of the trial. The intention of the legislature is to curb a situation where party to the suit should not subsequently fudge witnesses to make up their deficiencies.
Though in terms of law no hard and fast rule and absolute criteria can be set forth as benchmark to test if a case 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 its inaction/omission should be excused. Therefore, the good cause should be which appeal to judicial conscious of the Court that justified reasons as a party in default cannot, as a matter of right or as a matter of course, without assigning any good cause for the omission ask for calling the witnesses to be summoned nor to be produced only on account of a lame excuse and reasons and bald assertion.
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