ORDER XVI RULE 1 OF THE CIVIL PROCEDURE CODE,
CONTROLS ORDER XVIII, RULES 2 & 4
By:
CHAUDHARY MUHAMMAD BASHIR
Advocate High Court,
(Ex-member Punjab Bar Council)
In order
to bring home the point, enshrined in the temple of the article, Order XVI Rule
1 and Order XVIII Rules 2 & 4 of the Civil Procedure Code are reproduced
hereunder:
ORDER
XVI, RULE 1
1. Summons to attend to give evidence or produce document.--1[(1)
Not later than seven days after the settlement of issues, the parties shall
present in Court a 2[certificate of readiness to produce evidence, alongwith a] list of witnesses whom they propose to call
either to give evidence or to produce documents.
(2)
A party shall not be permitted to call 3[or produce] witnesses other
than those contained in the said list, except with the permission of the Court
and after showing good cause for the omission of the said witnesses from the
list; and if the Court grants such permission, it shall record reasons for so
doing.
(3)
On application to the Court or such officer as it appoints in this behalf, the
parties may obtain summons for persons whose attendance is required in the
Court:
Provided
that no summons shall be issued for service on a person under Rule 8 unless an
application in that behalf is made not later than fourteen days prior to the date
fixed for the hearing of the suit and the necessary expenses for summoning of
such person are deposited.]
4[Provided
further that no party who has begun to call his witnesses shall be entitled to
obtain process to enforce the attendance of any witness against whom process
has not previously issued, or to produce any witness not named in the list,
which must be filed in the Court on or before the date on which the hearing of
evidence on his behalf commences and before the actual commencement of the hearing
of such evidence without an order of the Court made in writing and stating the
reason thereof.]
1. Substituted by Ordinance XII of 1972
2. Added by Act of 1994
3. Added by High Court Amendment-
4. Amended by High Court Amendment-
ORDER XVIII RULES 2 & 4
2. Statement and production of evidence.--(1) on
the day fixed for hearing of the suit on the any other day to which the hearing
is adjourned, the party having right to begin shall state his case and produce
his evidence in support of the issues which he is bound to prove.
(2) The
other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.
(3) The party beginning then reply generally on
the whole case.
4. Witnesses to be examined in open Court.--The
evidence of witnesses in attendance shall be taken orally in open Court in the
presence and under the personal direction and superintendence of the Judge.
Plain
reading of Order XVI Rule 1(1) suggests that a party to the suit is obliged to
submit a list of witnesses whom it proposes to call or produce, either to give
evidence or to produce documents, within seven days after settlement of issues.
Rule 1(2)
debars a party from calling or producing a witness not contained in the list,
except with the permission of the Court on showing "good cause" for
the omission.
When the
Court grants permission it is required to record reasons for so doing.
The
reasons to be recorded by the Court are to be in the nature of confirming the
rationale, soundness or plausibility of the "good cause" shown by the
party. The reasons, as such, should not be extraneous to or in conflict with
the "good cause" of the party. There must be nexus between "good
Cause" shown by the party and the reasons given by the Court.
If a
party does not show "good cause" then sub-rule (2) does not authorize
the Court to supply a reason of its own, however good or attractive it may seem
to be, as in doing so the Court will be acting against law.
The term
"good cause" has not been qualified. It may embrace a variety of
situations in which a party has failed to comply with the requirement of
submission of the list. It is dependent upon the good conscience of the Court,
which is not susceptible to an objective measure.
The
August Supreme Court of Pakistan in a case reported in PLJ 1999 SC 981 (Mst. Mussarat Bibi
versus Tariq Mehmood Tariq) holding the provision of Order XVI Rule 1 to be
mandatory, has recognized `ignorance of law' and `femineity
of a party' not to be "good cause" for permission.
Investing
of inherent powers in Court under Section 151 of the C.P.C. only empowers it to
act in the ends of justice in a situation when there is no specific provision
of law to meet it.
So a
party failing to submit a list of witnesses, when it is required to submit
within the given time, and later does not show "good cause" for not
submitting it, is debarred from producing witnesses, has to blame itself for
this situation.
It has
been seen, with reference to Rule 1 of Order XVI of the C.P.C, that a party,
having not submitted list of witnesses within stipulated period, has one chance
of producing non-listed witnesses by getting permission from the Court in that
behalf, by showing good cause. If it fails in that then it is precluded from
producing such witnesses. Now the question arises as to whether there is any
other provision of law under which such a defeated party can produce such
non-listed witnesses.
A Learned
Judge of the Lahore High Court, Lahore in a judgment reported in 2005 MLD 688 (Haji Muhammad Tufail versus
Muhammad Ipbal) has held that even after the
amendment of rule 1 of Order XVI whereby the word "produce" has been
given restrictive meaning, no such amendment having been made in Rules 2 &
4 of Order XVIII, a party can examine `witnesses present in Court' under the
said rules of Order XVIII, independent of or to the exclusion of Rule 1 of
Order XVI.
The said
judgment has been followed in 2006 YLR 666 (Mst. Rukhsana Bibi versus Muhammad Ansar).
The said view
is open to review for the following reasons:
(i) Rule 2 of the Order XVIII is hardly
relevant to the point in issue, as, it only provides the order in which the
parties to the suit are to marshal their evidence, by reference to the issues
involved in the suit.
(ii) Rule
4 of Order XVIII does not exist independent of Rule 1 of Order XVI. The latter
Rule is exhaustive of the witnesses to be produced by a party to the suit,
whether to be called through Court or to be produced by the party of its own.
It is out of this lot of witnesses that "the witnesses present in
Court" have to be examined. The content of Rule 4
of order XVIII corresponds to content of Rule 1 of Order XVI. So availability
of witnesses to be produced under Rule 1 of Order XVI is a condition precedent
to the presence of any witnesses under Rule 4 of Order XVII. If a party is
entitled to produce a lot of witnesses, whether on the basis of list submitted
or permitted to produce on showing good cause, then as aforesaid, out of this
lot the witnesses present in Court can be examined under Rule 4. If,
conversely, a party, not submitting list, and is also not permitted to produce
witnesses for want of showing good cause, then such a party is not left with
any witnesses to be produced under Order XVI Rule 1 and the witnesses not
permitted to be produced under Sub-Rule 1 (2) cannot be present in Court under
Rule 4. If a party is allowed to produce witnesses under Rule 4 who have
already been denied examination under Rule 1(2) then it will amount to allowing
breach of said sub-rule by the party at fault, with impunity from being denied
the opportunity of producing unlisted witnesses. In such a situation Rule 1 of
Order XVI will be rendered redundant, superfluous and non-existent. It could
not be the intention of law to reduce the said rules to nothing. In order to
avoid this absurdity Rule 1 of Order XVI and Rule 4 of order xviii are to be
read in harmony so as to make the latter rule to follow the former rule. Rule 1
of Order XVI controls, Rule 4 of Order XVIII.