Order XVI rule 1 of the Code of Civil Procedure, 1908, emphasizes the submission of list of witnesses in civil cases within the period of seven days by the parties to the suit. By requiring this disclosure, the law aims to prevent surprise, to promote transparency so as to allow both sides adequate time to evaluate the credibility of testifier and prepare for cross-examination. This article delves into the procedural aspects and significance of Order XVI, Rule 1, highlighting its impact on the administration of justice in civil cases.
Requirement of list of witnesses in civil cases:
The purpose behind this requirement is to enable the other party to know that what evidence is to be brought on record by other side. It would help not only to avoid any kind of surprise to other party but also to avoid any fabricated evidence at a later stage.
Amjad Khan V Muhammad Irshad ( deceased) 2020 SCMR 2155
Manzoor Ahmad Sajjad V Akhtar Hussain 2022 CLC 856
This principle is called as ” Cards on the table” which means that litigants are under obligation to disclose all their evidence to the other side at appropriate point of time.
Messrs sheikh goods transport company and others and others V National fertilizer Marketing LTD.
2022 MLD 121
What does the word “call” means in O.XVI, R.1?
The term “call” as used in Rule 1(2) of Order XVI, C.P.C. refers to “calling a witness under the authority of the Court.” This requires a list of witnesses to be presented within seven days of the settlement of issues.
Muhammad Anwar and others V Mst Ilyat Begum and others PLD 2013 SC 255
Mussarat Bibi V Tariq Mahmood Tariq 1999 SCMR 799
Ghulam Murtaza V Muhammad Reyas and 3 others PLD 1980 Lah.495
Without submission of particulars in seven days, said person cannot be called by using machinery of court. Even the local commission cannot be summoned by taking edge of the O.XVI, R.14. It is discretion of court to summon any witness at any stage on its motion, where it is necessary to examine such person.
Ch. Muhammad Arshad V PTCL through General Manager 2017 CLC 119
What does the word “produce” means?
Word “call” and “produce” are not synonym. As per oxford English dictionary, the word “produce” means ” to bring forward, bring forth or out; to bring into view, to present to view or notice, to offer for inspection, often used for bringing forward testifier ( گواہ ). The comparison reveals that the legislature created fetteres for the call of witnesses through court. The restrictions as such does not apply to the “produced” ones.
Messrs sheikh goods transport company and others and others V National fertilizer Marketing LTD.
2022 MLD 121
What does “good cause” means?
The court has discretion to allow the calling and producing evidence even after expiry of prescribed period on showing reason .The expression “good cause” according to the law refers to a logically sufficient reason and can be interpreted broadly. There are no fixed or absolute criteria to determine it as it depends on the facts of each case. However, the defaulting party must demonstrate a legally sufficient reason for why the request should be granted and why the omission should be excused. Essentially, the court’s judicial conscience must be satisfied with a justifiable reason.
A defaulting party cannot, as a matter of right or routine, request the filing or summoning of witnesses or inclusion of a witness based on weak excuses or unsupported claims that it would serve the interest of justice or aid the court in deciding the matter.
Muhammad Anwar and others V Mst Ilyat Begum and others PLD 2013 SC 255
Principles behind permission to submit list of witnesses after seven days:
Although the law requires that the details of evidence be submitted within prescribed period, yet it does not bar the court from exercising its discretion to allow the same after expiry of prescribed period of limitation. Court can exercise this power suo motu or on application or on request of party.
Gul Habib V Amlook Khan 2018 MLD 1181
Umar Hayat V ADJ and others 2004 SCMR 1367
There are some main factors to be taken into consideration for it which are discussed below:-
1. Technicalities to be avoided:
Though there is requirement of submission of list of witnesses in civil suits within seven days, however, there are many cases laws which permit the submission of list of witnesses even after lapse of that period. The settled principle of law for establishing this rule is that technicalities of procedure should be avoided and matters should be decided on merits.
Syed Qalandar Hussain Shah V ADJ and others 2023 YLR 37
Mst Bundi Begum V Munshi Khan and others PLD 2004 SC 154
LRs. V Hafiz Muhammad Amin and others 2012 SCMR 1258
Muhammad Hafiz V Aziz Ahmad 1980 SCMR 557
2. When it does not prejudice other party:
If a reasonable explanation is given, and no prejudice is caused to the other party in its defence and court is not unduly inconvenienced, the party’s evidence can be permitted.
The Australasia Bank Ltd V Messrs Mangora Textile industries Ltd. And others 1981 SCMR 150
Umer Khan V Provincial Government through Chief Secretry 2021 MLD 1976
3. Conduct of the party:
Party’s conduct is relevant for considering his prayer for permission to produce additional evidence. Especially appellate Court has to exercise extreme caution in case of careless party who fails to take necessary steps at previous stages to produce it’s evidence.
Javed Iqbal V Shaheen Iqbal PLD 2023 Quetta 105
Grounds for permitting the party to submit list of witnesses after statutory period:
In following circumstances, court can allow the party to submit list of witnesses in civil suits even after the lapse of statutory period:
1. Marginal witnesses of agreement can be produced even without list of witnesses:
Party did not mention the names of persons who were sought to be produced as witness, were marginal witnesses of the agreement and the arbitrator of the agreement. Said agreement was not only mentioned in the plaint, but also produced and exhibited by the plaintiff in evidence. In such circumstances the plaintiff was entitled to produce witness on his own motion as of right on the day of recording of evidence even if no application had been made. Supreme Court directed that the Trial Court shall allow the production of two witnesses to the agreement and the arbitrator, and the plaintiff shall produce all the witnesses together for recording of the evidence on the same day.
Amjad Khan V Muhammad Irshad ( Deceased) 2020 SCMR 2155
2. No introduction of any new element:
The person who is being produced out of list as witness, could never testify about anything that the opposing party was unaware, either through the pleadings or the annexed and submitted documents, thereby eliminating any possibility of surprising the latter. In contrast, witness summoned by the court to provide evidence or produce documents was not constrained by the pleadings or the parties’ established cases. He could introduce new elements into the case, potentially shocking the opposing party and adversely affecting its position without sufficient notice. To prevent such surprises, the restriction of Order XVI, Rule 1 of the CPC was introduced.
No opportunity is to be granted to unsuccessful party to fill the lacunas of his case by producing additional evidence to the prejudice of the other party.
Sher Baz Khan V The state PLD 2003 SC 849
Javed Rafat Khan V Messrs Shabbir Tiles and Ceramics Ltd. PLD 2005 Kar. 1
3. Delay in submitting list of witnesses due to accident:
Petitioner took the contention that due to meeting an accident which resulted in fracturing his leg, he could not submit the particulars, names and details of evidence within time. Said contention was not expressely rebutted by opposite party. Court held that it was a sufficient material to grant permission.
Ghulam Hussain V Muhammad Ali and another 2020 MLD 1166
4. Application after remand of suit:
Suit was remanded to produce one witness ‘A’. Application is made by the party to produce another witness ‘B’ due to unavailability of ‘A’. He may be allowed to produce.
Haji Ghulam Muhammad V Haji Anwar Jan and 3 others 2012 YLR 2670
5. Opposite party was granted concession to submit list of witnesses:
Admittedly, court allowed adverse party to summon a witness, whose name was cited in the list which was submitted beyond provided days, there was sufficient reason to allow the adversary to submit her list of witnesses.
Shumaila Mehmood V ADJ and 4 others 2020 CLC 10
6. Mistake of counsel:
Where the party fails to get the name of witness on record within seven days due to inexperience or lack of understanding of counsel, he cannot be refused to summon his witnesses.
Mst. Mussarat Bibi and 2 others V Tariq Mehmood Tariq 1999 SCMR 799
7. Ahlmad lost the list:
Petitioner claimed that he handed over the list to reader but either court officials lost it or someone interested against him removed it from record. On calling by the court, Ahlmad reported that it has been misplaced. This report strengthened petitioner’s stance. Therefore, the court was directed to provide one opportunity to parties to lead evidence irrespective of the fact that they submitted the list of witnesses in prescribed time or not.
Khuda Bakhsh V Small Industries Corporation 1993 MLD 2325
8. Additional evidence:
Damages are claimed for causing death due to alleged negligence of doctors and officials of hospital. Defendants made application to summon officials and the record Punjab Institute of Cardiology, Lahore. Supreme court held that trial court rightly exercised it’s jurisdiction to allow the application of additional evidence.
Dr. Professor M.A. Cheema Surgeon PIC, Lahore V Tariq Zia and others 2016 SCMR 119
9. Summoning of witnesses through court:
Counsel recorded statement for closing of evidence after getting recorded testimony of private persons. The names of postman and record keeper were incorporated in the list who were to be summoned through court. They should have been summoned by the court despite mistake of counsel.
Amir Khan V Muhammad Taj 2021 YLR 1445
10. Summoning of official witness not included in list of witnesses:
Official witness Secretary RTA’s name was not included in list of witnesses which were to be summoned by court. Said person was in possession of primary documentary evidence which was relevant to controversy. Party cannot produce official witnesses privately. Hence court should summon them even if there names are not mentioned.
Shehnaz Begum V Ashiq Hussain Bhatti 1995 CLC 327
11. Witnesses names mentioned in plaint, is valid cause:
The names and addresses of the persons were already disclosed in the plaint, which sufficiently disclosed the main dispute between the parties. It was neither necessary nor required for the Court to strictly adhere to the procedural laws for recording evidence. Procedural law is intended to advance the cause of justice and expedite the resolution of disputes, rather than to deny the parties their respective rights.
Hidayat Khatoon V Munir Ahmed 1999 MLD 2153
Insufficient reasons to allow the submission of list of witnesses beyond statutory period:
In following circumstances, a party can not be allowed to submit his list of witnesses after lapse of statutory period of seven days:
1. Adverse case is allegedly concocted:
In the reported case, the explanation was that the plaintiff had presented a concocted story in her evidence, and summoning the official witness with records would help the court make a correct decision. This was not considered “good cause” and permission was not granted.
Muhammad Anwar and others V Mst Ilyat Begum and others PLD 2013 SC 255
2. Refusal to produce witness of negligent litigant:
Court refused to grant permission to negligent litigant to produce witness out of list. No opportunity can be granted to failing party to fill the lacunas.
Bashir Ahmad V Ahmad ul Haq Siddiqui 1985 SCMR 1232
Altaf Hussain V Lal Khan 1993 CLC 1580
3. No amendment in list of witnesses in pre-emption case:
A pre-emption suit is akin to a criminal case where no omissions can be rectified through amendments, additions, or corrections of defaults and delinquencies. The principle of law cannot be used to shun, evade or defeat specific legal provisions, nor can it shield a party from the consequences of their delinquency against clear legal mandates.
Mukhriar Ali Shah V Fazal Mir 2014 CLC 1478
4. No permission after closing evidence:
Petitioner did not submit any list after settlement of issues. After closing his evidence, at the stage of defendant’s evidence, he made application for summoning witnesses which cannot be allowed in absence of good cause.
Haji Khadim Hussain V Azmatullah 2018 YLR 2499
5. Misplacement of list of witnesses by Ahlmad:
Contention of misplacing list of witnesses by Ahlmad or other court officials remaind unconfirmed by anything from record. Petitioner can not be permitted to submit the same thereafter in this case.
Muhammad Azam V Muhammad Anwar Khan and 6 others PLD 2024 Lahore 49
Muhammad Iqbal V District Judge Vehari and others 2020 MLD 1760
6. Being a lady or ignorant of law is not a good cause:
The mere desire of a party to perform an act that was required to be done in a specific manner cannot be considered a valid reason. Additionally, being a woman or ignorant of the law does not entitle to any special treatment.
Alam Bibi and others V Qamar Sultana and others 2016 MLD 1400
7. Inadvertence is not a good cause:
‘Inadvertence’ does not fall in the ambit of term ‘good cause’. Especially in the case where the witnesses were official persons who were well in the knowledge of petitioner. The mentioned reason is not sufficient.
Jannat Bibi V Talay Bibi and others 2021 MLD 1395
Muhammad Ishfaq V ADJ 2019 CLC 183
8. Bonafide mistake is not a good cause:
Applicant took the contention that due to bona fide mistake, he could not file list. Court took the view that it is not a good cause.
Dr. (Retd.) Zahoor Ahmed V Ch. Muhammad Abid 2018 MLD 1563
9. Clerk just noted date and did not note the order:
Petitioner took the plea that his clerk only noted date of hearing and dis not note the order of framing of issues. Court treated it as not a good cause.
Muhammad Shah V ADJ Sahiwal 2018 YLRN 13
10. Unexplained delay is fatal:
If no reason is mentioned for delay in filing list, no permission can be granted as it does not amount a good cause in this scenario. Indolent has to face the consequences.
Muhammad Sana Ullah V ADJ and others PLD 2020 Lahore 675
11. Being unaware is not a good cause:
Court did not consider the plea of defendant being unaware of non-submission of list as a good cause.
Mazhar Iqbal V Additional District Judge 2014 MLD 1075
No dismissal of suit on account of non-submission of list of witnesses:
O.XVI, Rule.1 of the Code of Civil Procedure, 1908 does not provide any penal provision to dismiss the suit of plaintiff even if he does not submit names of persons intended to be produced in evidence, within prescribed time.
Faiz Ahmad V Zahoor ul Haq Siddiqui 2012 MLD 922
Suit fixed for providing list of witnesses cannot be dismissed under O.XVII, R.3. CPC.
Bibi Ayesha V Muhammad Akbar PLD 2023 Quetta 56
Witness to be summoned through court on inability of party to produce:
If a party is unable to produce its witnesses then it could resort to the machinery of court subject to making application within prescribed period. Court cannot require that party to produce them at its own responsibility.
Asifa Ayaz Toosy V ADJ 2019 CLC 362
Bashir Bibi V Aminuddin 1972 SCMR 534
Ikram Ullah V Farkhanda Habib 2012 CLC 569
Recording of evidence only on fixed date:
The fact that the restriction in Order XVI, Rule 1 of the CPC did not apply to witnesses voluntarily produced by the parties did not imply that parties had the freedom to produce them at any time during the proceedings. They could only be examined if they were produced and present on the scheduled day for recording evidence.
Amjad Khan V Muhammad Irshad 2020 SCMR 2155
Ghulam Murtaza v. Muhammad Ilyas PLD 1980 Lah. 495
Mahmood Textile Mills Limited V Sui-Northern Gas Pipelines, SNGPL through Managing Director, Lahore
PLD 2023 Lahore 139
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