HCs told not to interfere with discretion exercised by lower courts

The Supreme Court has asked the high courts not to exercise their constitutional jurisdiction to interfere with the discretion exercised by lower courts unless there were some jurisdictional, factual or legal errors.

A 10-page order, authored by Justice Sajjad Ali Shah, said that such an interference would be justified in cases where an impugned order had been passed without jurisdiction or was based on misreading or non-reading of evidence, or not in accordance with the law.

“The High Courts must not exercise their constitutional jurisdiction in order to interfere with the discretion exercised by lower courts unless the same suffers from jurisdictional, factual or legal errors,” said the order.

“If none of these errors is present, the high courts must not exercise their constitutional jurisdiction to interfere with the findings of lower courts merely because it reached a different conclusion as to the controversy than the latter,” it added.

The order comes on a petition filed by Amjad Khan, who had sought leave of the apex court to appeal against the judgment of the Islamabad High Court (IHC).

The IHC, while allowing the constitution petition filed by the respondents, had reversed the order of the appellate court granting the petitioner’s application under Order XVI Rule 1 of the Code of Civil Procedure 1908 (CPC), permitting him to produce three witnesses subject to the cost of Rs10, 000.

The apex court order comes over a question whether the original text of Order XVI Rule 1 CPC places any embargo on production of a witness by a party whose name does not find mention in the list of witnesses or it pertains to only those witnesses whom a party to the proceeding wants to call through court either to give evidence or to produce documents.

In absence of any infirmity that would have warranted the exercise of constitutional jurisdiction of the high court, the apex court judgment held that no case for interference was made in the discretion exercised by the appellate court.

“Even otherwise, the Petitioner was entitled to produce witnesses on his own motion as of right on the day of recording of evidence even if no application had been made. As such, we direct the trial court to allow the production of two witnesses to the agreement and the arbitrator in terms of the order of the learned appellate court, and the Petitioner shall produce all the witnesses together for recording of the evidence on the same day”, said the ruling.

The court said that Order XVI of the CPC regulated the summoning and attendance of witnesses in order to protect the interests of litigating parties. To this end, it added, the Rule 1 put an embargo on the right of litigants to summon witnesses in support of their claims.

“This embargo provides that litigating parties shall submit in court a list of witnesses to be called for attendance within seven days following the framing of issues, and that they shall not be permitted to call any witnesses outside of this list, except with the permission of the court,” the court said.

“The purpose of this embargo is to ensure that the litigating parties may prepare their cases with a measure of certainty and know the kind of evidence that is going to be produced, so that they may make necessary preparation for rebuttal and cross-examination and are not taken by any surprise at a belated stage in the proceedings.”

The court said that embargo was also limited to the witnesses who were to be summoned through the court, and did not extend to the witnesses that the parties sought to produce voluntarily without invoking the summoning powers of the court.

“Voluntary production of witnesses by the parties however does not jeopardise this purpose, because such witnesses either support the claims made in the pleadings and/or the documents mentioned in the list annexed to the plaint under Order VII Rule 14 CPC or produced in court at the first hearing of the suit, i.e. after the framing of issues, under Order XIII Rule 1 CPC,” the court order added.

Furthermore, it said, the parties were not allowed to produce any document that had not been brought to the notice of the court in terms of these provisions, except with the permission of the court under Order XIII Rule 2 CPC.

The court noted that the embargo contained in Order XVI Rule 1 CPC was inapplicable to witnesses that the parties voluntarily produced, adding it did not mean that the parties were at liberty to produce such witnesses at any time during the proceeding.