IN THE COURT OF WORTHY DISTRICT JUDGE, GUJRAT

CIVIL REVISION NO:_____/22

SHEIKH MAQBOOL ELLAHI S/O SHEIKH ABDUL ELLAHI ,CASTE SHEIKH, R/O
SHEIKH ELLAHI COLONY, G.T. ROAD, GUJRAT

(PETITIONER)

VERSUS

1) HAJI MUHAMMAD SHARIF S/O SARDAR KHAN, CASTE JUTT WARRAICH, R/O
KALRA KHASA, TEHSIL & DISTRICT, GUJRAT.
2) FIAZ HUSSAIN SHAH S/O MUHAMMAD HUSSAIN SHAH, CASTE SYED ,R /O
KALRA KHASA, GUJRAT
3) SHAHKAR MIRZA S/O TALIB HUSSAIN , R/O SULTANABAD GUJRAT
4) MUHAMMAD AKRAM S/O ASADULLAH , CASTE KADHAR, R/O KALRA
KHASA, GUJRAT
5) HADAYATULLAH S/O ASADULLAH , CASTE KADHAR , R/O KALRA KHASA,
GUJRAT
6) MUHAMMAD ANAYAT S/O ALLAH DITTAH, CASTE KADHAR, R/O KALRA
KHASA, GUJRAT
(RESPONDENTS)

REVISION PETITION U/S 115 OF CODE OF CIVIL PROCEDURE,1908 AGAINST

THE IMPUGNED ORDER DATED 06-09-2022 BY PASSED THE LEARNED
CIVIL JUDGE, GUJRAT.

TRIAL COURT APPELLATE COURT

SUIT NO. DATE OF ORDER COURT DATE OF
INSTITUTION DATED FEE INSTITUTION COURT
OF SUIT FEE

06-09-
1167/2014 11-03-2014 2022 16-09-22 NIL
 RESPECTFULLY SHEWETH:

1. That the addresses of the parties given above are sufficient for the purpose
of affecting service upon them.

2. That through the instant Revision petition, the petitioner seeks the
indulgence of this Honorable Court for setting aside impugned order dated:
06-09-2022 passed by the learned Civil judge, Gujrat.

3. That brief facts giving rise to the filing of instant Revision petition are that
the petitioner filed a suit for declaration with permanent injunction and on
09-05-2022 the petitioner filed an application under Order 13 Rule 1,
Order 7 Rule 14, 18 and Section 151 of Code of Civil Procedure for the leave
of the court for summoning the record of cheque No. 5652714 account
holder Sheikh Maqbool Ellahi PLs saving ( CNIC: 34201-0393670-7) Askari
Commercial Bank G.T Road, Gujrat through Bank representative and
production of private persons due to the death of witness namely;
Muhammad Iqbal S/O Allah Ditta , named in list of witnesses.

4. That on 06-09-2022, the learned Civil Judge class 1 st , Gujrat without going
through the record and discussing the real contention of the petitioner
partially accepted the application of the petitioner to the extent of granting
leave for summoning the record of cheque and declined the application of
the petitioner / plaintiff for the production of the private witnesses through
the following legally misconceived reasons :

a) It appears from the record that the petitioner filed this suit for
declaration with permanent injunction , cancellation of registered
sale deeds , this suit was instituted in the year 2014 in which the
defendants appeared, they submitted their written statements,
issues were framed through order dated 26-02-2016 and the plaintiff
was directed to submitted his list of witnesses within statutory
period. Thereafter, an application for submission of list of witnesses
was submitted, that application was decided through order dated 10-
01-2017, but the plaintiff again was failed to produce his list on
record.
 b) The plaintiff was required to submit his list of witnesses within
statutory period or by time extended by the court but he was failed
to do so. He was failed to make any reasonable justification about its
failure. In these circumstances, the request of the plaintiff for the
summoning of the witnesses is declined.

5. That the petitioner seeks the setting aside of the impugned order dated:
06-09-2022 to the extent of the refusal for the production of private
witnesses and factually incorrect conclusion regarding the list of witnesses
on the following inter alia grounds:

GROUNDS

1) That the impugned order dated: 06-09-2022 is against the law laid
down by superior courts, illogical and against the order.

2) That the learned Trial Court has erred in ignoring that copy of list of
witnesses was available on the record file with the report of Ahlmad
which was suffice to show that the petitioner/plaintiff had done the
needful.

3) That the learned Trial court was oblivious of the fact that PW-3 &
PW-4 had already been summoned and recorded without any
objection by the defendants/respondents. Needless to mention that
the said witnesses were summoned through the process of court and
that too on the basis of list of witnesses.

4) That the learned Trial court has also misconceived the application of
the petitioner/plaintiff which was in fact filed for the purpose of
summoning of bank record and production of private witness.

It is pertinent to point out that in view of the

judgment given by august Supreme Court in a case law reported as
2020 SCMR 2155 there is a clear distinction between summoning of
witnesses and production of witnesses. Former requires the
permission of the court whereas the later does not require any
permission. In fact the court is bound to record the witness present
in the court on the day of recording the evidence.
 It will not be out of place to mention that the
private witness was produced and recorded prior to the decision of
this application without any objection either from the court or from
the respondents/defendants side.

Even in the worst case scenario, the learned Trial

court has failed to appreciate that the private witnesses named in
the list of witnesses had died and it was sufficient reason for
production of a private witness not named in the list of witnesses.

5) That the learned Trial court has also ignored that apart from the
judgment cited above given by august Supreme court of Pakistan, the
honorable Lahore High Court, Lahore has also amended Rule 1 of
Order 16 of Code of Civil Procedure,1908 through notification No.
237/ Legis /XI-Y-26 dated: 15-08-2018 applicable w.e.f 01-11-2020
which now reads as follows:

“ (1) The Court shall , immediately after framing of issues, require

the parties to file a list of witnesses in the court within such period,
not later than seven days, as the Court may fix.
(2) A party shall not be permitted to call witnesses other than those
contained in the list, except with the permission of the Court and
court after showing good cause for the omission of the said
witnesses from the list and the Court shall record reasons for
granting permission.”

6) That the learned Trial court has failed to note the order dated: 16-01-
2018 of her learned predecessor wherein the said learned
predecessor directed the Ahlmad to place the application for tracing
of list of witnesses in the main file. Needless to mention that the
application was supported by the copy of list of witnesses with the
report of Ahlmad in the following manner:
 It was , therefore, the matter of misplacement of
original list of witnesses was deemed resolved and subsequently
none of the parties make any objection. The above said report of
Ahlmad which bears his signature clearly establishes the fact that the
list of witnesses was duly submitted. Even otherwise , the said
Ahlmad can be inquired into about the submission of list of
witnesses.

7) That it is settled principle of law that no one should be prejudiced by

the act of the Court. There is no legal bar on the submission of list of
witnesses to the Ahlmad attached with the court whose duty is to
place the said application before the learned judge. In the instant
case the due report was not only made but the official stamp of the
court was also put on the top of the application. Subsequent
misplacement of record of list of witnesses or non-recording of the
application dated: 16-01-2018 in the interim orders is an act of the
court for which the petitioner/plaintiff cannot be penalized.

Similarly, considering an application of for

production of witnesses as the one for summoning of the witnesses
and its refusal to the extent of the production of the witnesses while
holding that there is no list of witnesses submitted by the
petitioner/plaintiff and also while ignoring the fact that witnesses
including the summoned witnesses have also been recorded. It has
also been ignored that application dated: 16-01-2018 ( supported by
copy of list of witnesses which also bears the signatures of the then
Ahlmad ) has already been part of main file.

8) That the learned Trial court has also ignored the fact that the copy of
list of witnesses is available on the record for at least four years prior
to the recording of the evidence of the plaintiff/petitioner, therefore,
there was no element of surprise for the respondents/
defendants .the photocopy with the receiving of the Ahlmad was
made part of record and it was , therefore, the matter was settled to
the extent of the submission of the list of witnesses and it has never
been objected by any party before court even at the time of
recording of evidence in court .
9) That the factually incorrect conclusion of the learned Trial Court
regarding the list of witnesses despite of the availability of its
photocopy on record along with the order of the court is likely to
prejudice the valuable right of the plaintiff/petitioner.

10) That the case laws cited and upon which the Trial Court relied
are distinguishable.

11) That the petitioner has prima facie arguable case.

12) That seeking of lawful protection from the courts is an

inalienable right of the petitioner/ plaintiff and its refusal is likely to
cause irreparable loss to petitioner.

PRAYER

In view of the above , it is most respectfully prayed that the order dated
06-09-2022 to the extent of refusal for production of private witnesses
and conclusion regarding the list of witnesses passed by the learned Civil
Judge, Gujrat, may kindly be set aside. The said conclusion regarding list
of witnesses while ignoring the report of Ahlmad along with his
signatures, stamp of the court, without examination of the then Ahlmad
on the relevant point and without considering the application dated: 16-
01-2018 be declared against the canons of justice. The said application
along with the copy of list of witnesses may kindly be declared to be
duly available on record file.
Any other relief which this honorable Court deems fit may also be
granted.
Petitioner
Through Counsel

Sheikh SulemanEllahi
Waseem Ahmed
Advocates High Court
Advocate SairaShahzadi
Advocate Muhammad UsamaRanjha
Sheikh Ellahi Law Associates,
G.T Road, Gujrat
CERTIFICATE:

Certified that ,as per instructions of my client, this is the first revision petition on
the subject on behalf of the petitioner before this honorable court.

ADVOCATE

DATE: _________

RELIANCE IS PLACED ON:

1. 2020 SCMR 2155

2. ORDER XVI Rule 1 & 2 C.P.C