1994 PLP 311 (CLC)

(1) Whether the plaintiff is entitled to recover Rs. 4,44,649.80 from the defendants with interest thereon as alleged in the plaint? OPP (2) Whether the suit is not maintainable? OPD (3) Whether the suit is bad for misjoinder of necessary parties? OPD (4) Whether the plaint is liable to be rejected under Order VII, rule 11 of the C.P.C.? OPD (5) Whether the plaintiff is estopped from claiming the disputed amount from the defendants? OPD (6) Whether the defendants are entitled to special costs under section 35-A of C.P.C.? OPD (7) Relief. The case was fixed for recording of the petitioner's evidence but was adjourned on a number of dates. On 2nd of June, 1992 Muhammad Rafi Abid, Liaison Officer of the Company was produced as first witness on behalf of the petitioner-Company and wanted to produce and prove the correspondence exchanged between the parties regarding the terms and conditions of the contract. However, the trial Court vide the impugned order dated 2-6-1992 disallowed him to make a statement with reference to the documents (photo copies of which had already been placed on the record).

2. The petitioner's learned counsel contends that the documents (Annexures D to W) were filed alongwith the plaint and were to be proved by Muhammad Rafi Abid while appearing in the Court alongwith the original record. There was no legal justification to disallow the witness to make statement with reference to the relevant record especially when the onus of the issues could have been discharged only through the proof of the documents annexed to the plaint. He submits that while making a statement the petitioner's witness could produce all the relevant documents and also refresh his memory with reference to the file containing the original documents as provided under Article 155 of Qanun-e-Shahadat. Further states that the entire correspondence relating to the agreement was done either by Muhammad Rafi Abid or Mr. Irshad, therefore, they had to produce in order to prove the documents signed by them.

3. The learned counsel for the respondent states that the documents (agreement and correspondence between the parties) are admitted and there is no dispute about authenticity of the same. However, the objection was about the mode of making the statement. He states that the witness may refresh his memory as provided under Article 157 of the Qanun-e-Shahadat

4. The etherial controversy between the parties stands resolved in view of the above submissions made by the learned counsel for the parties. The petitioner's witness will make statement in the Court verbally and shall produce and prove the relevant documents. He shall also be at liberty to place the file containing the record in front of him in order to refresh his memory as and when necessary.

5. The revision petition is accepted, the impugned order dated 2-6-1992 is set aside leaving the parties to bear their own costs. The trial Court shall record the evidence in the light of the observations made in para 4 above. H.B.T./C-31/L Petition accepted.