2014 PLP 1364 (MLD)

By means of this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged orders dated 5-10-2011 and 2-5-2012, passed by the learned Civil Judge Bahawalpur (respondent No.2) and the learned Additional District Judge, Bahawalpur (respondent No.1), respectively.

2. Shorn of unnecessary details, respondent No.3 filed a suit for partition of following properties:-- (i) Banglow No.7-B/1, situated in Gazzetted Officers Colony, Block B-I, Model Town-A, Bahawalpur, and (ii) Banglow No.6-A, situated in Sodagar Colony, Model Town-B, Bahawalpur. The petitioner contested the said suit on the ground that property mentioned at serial No.(ii) above was gifted to him by his father by virtue of written gift deed dated 11-6-1988 whereas the other was Purchased by him by paving the price of shares of his sisters. During pendency of the said suit the petitioner moved an application for permission to get confronted copies of cheques, statement of accounts as secondary evidence and Mr. Qamar Hameed 1-lashmi Advocate be allowed to be produced as secondary evidence. The said application was hotly contested by the respondents. Finally, the learned trial Court vide order dated 5-10-2011 dismissed the said application against which the petitioner preferred a revision petition which too met with the same fate by virtue of order dated 2-5-2012 passed by respondent No.1; hence the instant petition.

3. Learned counsel for the petitioner contends that after the statement of Mr. Azhar Nadeem Ansari, Operational Manager, Ghalla Mandi Branch, Bahawalpur, that no-record regarding the cheques-in-question was available in the Bank, the petitioner was left with no option but to seek permission of the Court for production of secondary evidence; that as foundation of petitioner's case hinges upon issuance of cheques and its subsequent withdrawal by respondent No.3, in case of non-confrontation of said documents to the plaintiff's witnesses case of the petitioner would suffer badly; that both the courts below have failed to appreciate that when it has been proved that the original record is not available ?? production of said documents in the shape of secondary evidence is sine-qua-non; that the writing available on the back of the cheque, being relied upon by the petitioner, also confirms the stand taken by him; that law favours adjudication of matters on merits instead of technicalities and that in case the impugned orders are not set aside and the petitioner is not allowed the requisite permission for secondary evidence, as prayed in his application, he would Suffer immensely.

4. Conversely, learned counsel appearing on behalf of respondents Nos.3-A to 3-G, while defending the impugned orders submits that during the course of recording of evidence in affirmative of plaintiffs, the application filed by the petitioner was immature; that no reason has been advanced for production of Mr. Qamar Hameed Hashmi, Advocate as secondary evidence as he has no relevancy with the dispute in question; that the petitioner would be well within his right to move for permission to lead secondary evidence at his turn; that no illegality has been committed by the courts below; that infact the petitioner and respondent No.3 who is being survived by respondents No.3-A to 3-G, are real brothers and sisters; that the petitioner is delaying fate of the suit filed by respondent No.3; that the reasons advanced by learned counsel for the petitioner that without confrontation of the documents in question to the PWs his case would suffer badly, has no worth especially when despite recording statement of P.W.1, the petitioner did not cross-examine her and that after death of respondent No.3 confrontation of documents and that too in the shape of copies without comparing it with the original would serve no useful purpose and that no interference is called by this Court.

5. I have heard learned counsel for the parties at length and have also gone through the documents annexed with this petition.

6. Firstly, taking up the question as to whether the petitioner can move for production of secondary evidence at the time of recording of plaintiff's evidence in affirmative, I am of the view that according to Order XVIII Rule 1 C.P.C. the party on whom the onus to prove a particular issue has been placed has the right to lead. If plaintiff starts he would lead his evidence qua all the issues onus of whom has been placed on his shoulders. However, the defendant has the option either to produce evidence in rebuttal on the conclusion of evidence of the plaintiff on each issue or after completion of entire evidence of the plaintiffs. Admittedly, evidence of the plaintiff is being recorded and the petitioner, instead of cross-examining P.W.3 whose statement was recorded way back in the year 2009, resorted to miscellaneous application out of which the present petition has stemmed. It is cardinal principle that when a party is leading evidence he is to first complete the same and then the other has to start on his own turn. When evidence of the plaintiff is being recorded, in my humble view, the application filed by the petitioner was not justifiable. When the law requires an act to be done in a particular manner it had to be done in the same way and no exception can be taken thereto. Reliance in this regard is placed on the case reported as Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255) wherein it has inter-C-7 alia been held as under:-- "It is a well known principle of law that where the law requires an act to be done in a particular manner it has to be done in that manner alone and such dictate of law cannot be termed as technicality"

7. It is well entrenched by now that that even a certified copy of the document without comparing the same with the original one cannot be put to a witness, what to talk of the document whose record, according to Bank authorities, is not available.

8. Another interesting feature of the instant case is that the petitioner while filing application before the trial Court prayed that he be allowed to pat, photocopies of cheques, statements of accounts to plaintiffs witnesses in the shape of secondary evidence and he be also allowed to produce Mr. Qamar Hameed Hashmi Advocate as secondary evidence. In the entire application, no link of said Advocate has been shown with predecessor in interest of respondents Nos.3-A to 3-G. It is not denied that in case the original scribe of a document is not available, the signatures thereof can be proved by producing any other person who in ordinary course of life is well-acquainted with signatures/handwriting of the deceased and has any liaison with the deceased during the course of execution of the documents. As no such reason has been mentioned by the petitioner in his application, his prayer was rightly turned down, by the courts below. Furthermore, the petitioner can file such applications or produce anybody in evidence with permission of the Court if his name has not been mentioned in the list of witnesses, at his turn.

9. After demise of Mst. Shamim Akhtar, real sister of the present petitioner, the confrontation of the documents mentioned in the application, subject-matter of the instant petition, is of no importance. Further, though the said witness remained alive for considerable period after recording of her statement as P.W.1, present petitioner did not cross-examine her or tried to put copies of cheques etc. to her.

10. Now coming to contention of the petitioner that writing available on the back of the cheque issued in the name of respondent No.3 also affirms that she received the amount of her share, thus, she has no concern with the suit properties, I am of the view that at present it would be unjust to comment upon the said aspect as any observation made by this Court would prejudice-case of either party.

11. For what has been discussed above, I see no force in this petition which is hereby dismissed. ARK/M-119/L Petition dismissed.