2010 PLP 1656 (MLD)

MUHAMMAD KHALID MEHMOOD KHAN, J.

The petitioners filed a suit for recovery of damages under Fatal Accidents Act, 1855 against respondents Nos.3 and 4 for causing the death of her husband and their father. The respondents Nos. 3 and 4 contested the suit. The learned trial Court framed the issues. Respondent No.1 filed list of witnesses mentioning the record of daily newspaper. 'Din' other unnamed witnesses and respondent No.1 himself and in the list under Order VII, Rule 14 only one document was relied upon i.e. daily newspaper `Din'. The petitioners completed their evidence and case was adjourned for evidence of respondents Nos. 3 and

4. The respondents continued to obtain adjournments and ultimately on 2-7-2005 they filed four applications one under Order XI, Rule 14, C.P.C. for production of documents, second under Order XVI, Rule 1 and 2, C.P.C. for summoning the witness, their under Order I, Rule 10, C.P.C. for deleting the name of respondents Nos. 3rd and 4th for permission to adduce secondary evidence.

2. The perusal of list of witnesses submitted by respondents show that they have not specifically mentioned the names of witnesses and mentioned as under:--

3. The application for summoning the witness was for a police official from police station where the F.I.R. No.113 dated 7-3-1998 was recorded about the accident which caused the death of predecessor in interest of petitioners. The claim of respondent No.3 is that he was not driving the car when the accident took place the file of the accident record is with the said police station and the police file can only be produced through the police official and for this reason he submitted the application for summoning the police record. It is an admitted fact that at the time of written statement all these facts were in the knowledge of respondents but they have failed to mention the name of witnesses in their list of witnesses. Further they have not relied upon the police file in the list under Order VII, Rule 14, C.P.C. and as such now at this stage the petitioner has to explain and prove on record that there was a sufficient cause available to him for not relying upon the police file and not including, the name of police official in his list of witnesses. As far as the application for secondary evidence is concerned the learned Courts below have not held that, the loss of document sought to be produced has been proved and without proving the loss of original document the permission of secondary evidence was wrongly allowed by the learned courts below. As far as third application for production of document under Order XI, Rule 14 is concerned, it is established principle of law that notice under Order XI Rule 14 for production of document can be given to the party to the suit and not to third party who has not been 4 arrayed as party to the suit and as such the learned Courts below have wrongly accepted the said application. The learned trial Court should have maximum allow the application under Order XVI, Rules 1 and 2, C.P.C. for summoning the police official for bringing the inquiry file which is relevant for the resolution of controversy between the parties but the learned Courts below without giving any findings whether any sufficient cause has been shown by the respondent has allowed the application, however, technicalities should not be allowed to defeat the ends of justice and in the interest of justice the parties should' have permitted to place on record all available evidence for proving or defending their case. As far as the application for secondary evidence is concerned that has been allowed without any justification without ascertaining the loss of document, as such the order to that extent is not sustainable in the eye of law. In view of above, the order on the application under Order XVI, Rule 1 and 2, C.P.C. passed by the courts below is upheld and the order passed on application for production of document as well as the secondary evidence is set aside. It is an old case and the legal heirs of deceased are facing difficulties in the disposal of the suit being widow and minor sons and daughters and as such the learned trial Court is directed to decide the suit within 2 months from the date of receipt of certified copy of this order. The revision petition is partially allowed.

4. There is no order as to costs. H.B.T./M-405/L Order accordingly.