2004 PLP 1127 (MLD)

‑‑‑‑O.XXXVII, R.2, 3 & O.XI, Rr.12 & 14‑‑‑Suit for recovery of amount‑‑‑Application for recovery and production of document‑‑‑Court had discretion to order any party to produce upon oath, such of documents in his possession or power, relating to any matter in question in such suit, as the Court would think right during the pendency of suit‑‑ Court could deal with such documents, when produced, in such manner as would appear just‑‑‑Application for production of document filed by defendant, in the present case, was entirely based on a contradictory plea and contents of documents sought to be produced entirely 'negated the averments of written statement filed by applicant/defendant‑‑ Production of such documents could not be ordered as envisaged in O.XI, R.12, C.P.C. which had provided that discovery could not be ordered when Court was of the opinion that it was not necessary either for fair disposal of the suit or for saving the costs. Syed Ghulam Nabi Shah for Petitioner. Brief facts in the instant writ petition are that suit for recovery of Rs.1,81,635 through Cheque No.411888 PLS A/C No.22345‑3, dated 1‑7‑1999 was filed by Muhammad Anwar respondent/plaintiff before the learned District Judge, Okara. Leave to defend was allowed and written statement was filed. Stand taken by the petitioner/defendant was that defendant's cheque book was lost and one cheque out of the cheque book was stolen by the plaintiff and was filled in with the disputed amount and on that cheque basis the suit has been filed. Evidence of P.Ws. 1 to 3 and D. Ws. 1 to 3 is complete. Thereupon the present petitioner moved an application under Order XI Rule 14 read with section 151, C.P.C. that through an agreement, dated 10‑6‑2000 the defendant's father has paid the disputed amount in instalments and the said agreement is in possession of the plaintiff and he should produce the same in the Court to be brought in evidence. This application was replied by the respondent being frivolous and it was averred by the respondent that if he has paid the disputed amount then he should place the proof in the Court. Learned trial Court vide judgment and decree, dated 11‑3‑2004 observed that document in question is not relevant with the proceedings of this case as in the whole proceedings the same is questioned by the petitioner. Evidence of both the sides is concluded and document is not required at this stage.

2. Arguments advanced by learned counsel for the petitioner are that said agreement is very material document, which is under possession of respondent No.

1. It is admitted by respondent in his cross -examination that agreement was reduced into writing between him, Muhammad Tufail and Muhammad Afzal about the business transaction and in that agreement the instalments were to be paid and it is incorrect that as per agreement all the instalments have been paid.

3. I have heard the learned counsel for the petitioner and perused the agreement. This agreement pertains to the payment of amount through instalments on 31‑7‑2000 Rs.40,000, on 15‑5‑2001 Rs.40,000, on 31‑7‑2001 Rs.40,000 and on 15‑5‑2002 Rs.40,

000. The averments in the written statement are entirely contradictory. He has averred that cheque was stolen by the plaintiff and filled by respondent and no cheque was issued by him while the agreement which he wants to bring on record shows that father of the plaintiff has undertaken to pay the disputed amount in instalments and this is the stance taken by the D.Ws in their evidence. While appearing as D.W.3 Muhammad Asif the petitioner/defendant stated that he has not purchased any crop from the plaintiff, he has not to pay any money to the plaintiff and he has not issued the disputed cheque undertaken to pay the disputed amount in instalments and this is the stance taken by the D.Ws. in their evidence. While appearing as D.W.3 Muhammad Asif the petitioner/defendant stated that he has not purchased any crop from the plaintiff, he has not to pay any money to the plaintiff and he has not issued the disputed cheque. His father had some business transaction with the plaintiff and he paid the money in the shape of instalments but he has totally failed to place on record any payment of the instalments as alleged in the document, which he wants to produce and he has not produced his father.

4. As far as the application of Order 11 Rule 14, C.P.C. is concerned it is a discretion of the Court that during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right, and the Court may deal with such documents, when produced, in such manner as shall appear just. Order of the Court under Order II Rule 14, C.P.C. for production can only be made in respect of document in the possession or power of any party. This is not the case of the petitioner in his written statement. In the written statement no averment was made by him that instalments of the disputed amount have been made by his father. He has absolutely denied issuance of cheque of the disputed amount. He has also denied that any transaction or dealing existed between him and the plaintiff and he has also averred in his written statement that the disputed cheque was stolen by the plaintiff and was filled in with the disputed amount and suit has been filed on the basis of a cheque, which was not issued by him. The application for production of document is entirely based on a contradictory plea and the Court can inspect the document, as this Court has perused the photostat copy of the alleged agreement made between the petitioner's father and the respondent and this document also does not disclose that any payment was made by the father of the petitioner and contents of agreement entirely negate the averments of the written statement and for such document the production cannot be ordered as is envisaged in Order II, Rule 12, C.P.C. that discovery cannot be ordered when so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the suit or for saving costs" therefore, finding no substance in the instant writ petition, the same is dismissed in limine. M.B.T./M‑193/L Petition dismissed.