2005 M L D 688

[Lahore]
Before Maulvi Anwarul Haq, J
Haji MUHAMMAD TUFAIL---Petitioner
versus
MUHAMMAD IQBAL---Respondent
C.R. No.1081 of 2004 and C.M. No.1 of 2004, decided on 24th November, 2004.

Civil Procedure Code (V of 1908)---

----O.XVI, R. 1, O.XVIII, Rr.2, 4 & O.XXXVII, Rr. 2 & 3---Suit for recovery of
amount---Production of evidence---Matter was adjourned for recording evidence of
plaintiff after framing issues---Plaintiff was present in the Court on the adjourned
date of hearing, along with his witnesses when objection was raised by defendant
that list of witnesses in terms of O.XVI, R.1, C.P.C. having not been filed by
plaintiff, his witnesses present in the Court could not be examined---Validity---
Distinction had to be drawn between term 'call' and 'produce' after comparing
provisions of O.XVI, R.1, C.P.C. with those of O.XVIII, Rr. 2 & 4, C.P.C.---
Witnesses in attendance could be examined in accordance with the provisions of
O.XVIII, Rr. 2 & 4, C.P.C.---Even after High Court (Lahore) amendment whereby
word 'produce' had been inserted in O.XVI, R.1, C.P.C. without amending
provisions of Rr. 2 & 4 of O.XVIII, C.P.C., situation would remain the same---
Matter of witnesses present in Court would be governed by Rr. 2 & 4 of O.XVIII,
C.P.C. which were intact in their original form.
Ghulam Murtaza v. Muhammad Ilyas and 3 others PLD 1980 Lah. 495 and Mst.
Musarrat Bibi and 2 others v Tariq Mahmood Tariq 1999 SCMR 799 ref.
Mirza Aziz Akbar Baig for Petitioner.

ORDER
On 12-3-2004 the respondent filed a suit for recovery of the Rs.15,00,000
against the petitioner under Order XXXVII, C.P.C. The petitioner put in appearance
and was granted leave to appear and to defend the suit. A written statement was
filed. Issues were framed on 22-9-2004 and the case was adjourned for recording
evidence of the respondent. On 6-11-2004 the respondent was present in Court
along with his witnesses when an objection was raised that since a list witnesses in
terms of Order XVI, rule 1, C.P.C. as amended by this Court on 2-10-2001 has not
been filed, the witnesses cannot be examined. He objection was overruled by the
learned ADJ, Multan, on 6-11-2004.
2. Learned counsel for the petitioner contends that it is obvious that the
amendment was made by this Court in Order XVI, rule 1, C.P.C. to undo the effect
of the Full Bench judgment of this Court in the case of Ghulam Murtaza v.
Muhammad Ilyas and 3 others (PLD 1980 Lahore 495), approved by the Hon'ble
Supreme Court of Pakistan in the case of Mst. Musarrat Bibi and 2 others v. Tariq
Mahmood Tariq (1999 SCMR 799) and after the introduction of the word
"produce", as suggested by the Hon'ble Acting Chief Justice in the said case
Ghulam Murtaza, the effect would be that even such a witness who is present in
Court cannot be examined unless and until a list containing his name has been filed
in terms of Order XVI, rule 1, C.P.C.
3. I have given some thought to the said contention of the learned counsel. I have
again examined the judgment delivered by a Full Bench of this Court in the said
case of Ghulam Murtaza, with the assistance of the learned counsel. I find that the
distinction between the term "call" and "produce" was made by their Lordships
after comparing the provisions of Order XVI, rule 1, C.P.C. with those of Order
XVIII, rule 2, C.P.C. and Order XVIII, rule 4, C.P.C. I will refer here to para. 9 of
the leading opinion of the Hon'ble Acting Chief Justice at page 503 of the report
wherein it has been observed that rules 2 and 4 of Order XVIII, C.P.C. should have
also been deleted or amended in the light of the amendment made in rule 1 or Order
XVI, C.P.C. Similarly, Mr. Justice Abdul Shakurul Slam (as his lordship then was)
while agreeing with the leading opinion observed at page 505 of the report that the
witnesses in attendance shall be examined in accordance with the provisions of
Order XVIII, rule 4 C.P.C. as well. Now the position is that even after the said
amendment whereby the word produced has been inserted in Order XVI, rule 1,
C.P.C. without corresponding amendment vis- -vis rules 2 and 4 of Order XVIII,
C.P.C., the situation still remains the same so long as Order XVIII, rule 2 and Order
XVIII rule 4, C.P.C. are in the field. The reason being that the matter of witnesses
present in Court is to be governed by rules 2 and 4 of Order XVIII, C.P.C. which
remained intact in their original form.
4. The civil revision accordingly is dismissed in limine.
H.B.T./M-825/L Revision dismissed.