2002 PLP 655 (CLC)

M.G. Distgir and Muhammad Sharif for Plaintiff. Shaikh Mir Muhammad, Khalil-ur-Rehman and Adrian Ahmed for Defendants. Date of hearing: 24th May, 2001. The Commissioner appointed by this Court, while recording deposition of plaintiff Muhammad Abid directed him to produce Assessment Order and Income-tax Return for last 10 years, but he declined to produce same, on the pretext that he has been advised by his tax adviser not to produce said documents unless directed by the Court. The counsel for the plaintiff objected that the Commissioner had no power to direct the witness to produce said documents. Resultantly, reference dated 8-3-2001 was made to this Court which came, up for consideration before me. On hearing of the parties, following orders were passed:-- "The Commissioner was appointed under the direction of this Court, is in fact performing the function of the Court and for all intents and purposes enjoys the same powers as the Court itself possesses. Non-compliance of the direction of the Commissioner amounts to the disobedience of the orders of the Court and all the consequence attached thereto follows. The witness is directed to give respect and regard to the Commissioner and otherwise he be dealt with accordingly." Plaintiff preferred High Court Appeal being No.102 of 2001 against such order whereupon, learned Division Bench taking stock of above observation passed the orders, operative whereof reads as follows:-- "While the proposition appears to require some deeper consideration both Mr. Muhammad Sharif and Shaikh Mir Muhammad agreed that the power of the Court to direct a witness to produce certain documents cannot be disputed, though it is a different matter as to how and under what circumstances such power needs to' be exercised. In the circumstances we considered the controversy to be largely academic and would dispose of this appeal with the consent of learned counsel by ordering that the parties will appear before the learned Single Judge on 18-5-2001 who will decide whether in the circumstances of the case it would be proper to direct the appellant to produce the documents in question." Resultantly, the matter has come up before me once again. Controversy that has been urged are two-fold i.e. firstly, under what circumstances a- Court can direct production of documents and secondly, whether such circumstances exist in this case to direct production of documents sought to be produced by the plaintiff/witness. In order to appreciate the contention of both the learned counsel a brief resume of the case will be necessary. Plaintiff has instituted a suit for declaration, specific performance, and injunction on the basis of purported Sale Receipt, dated 30-4-1998 allegedly executed by the defendant No.2 under the purported authority of defendant No.

1. From the record it appears that title of subjected property vested unto the defendant No. 1 on 13-6-1998 when deed of conveyance was executed by the Official Assignee in her favour, pursuant to the orders on a reference made in J.M., No.5 of 1987, dated 23-5-1998. It is the claim of defendant No. 1 that defendant No. 2 in collusion with the plaintiff is attempting to defraud' her. Whereas claim of defendant No.2 is that he entered into such transaction at the behest of defendant No. 1 who was in need of money at the relevant time and the advance amount received was paid to the plaintiff in Suit No. 168 of 1988 through a pay order, it is further stated that, the power of attorney was cancelled by the defendant No. 1 unjustly who desired to execute and finalized the transaction herself. Learned counsel appearing for the defendant No. 1 contended that the plaintiff is a front man of defendant No.2 as defendant No. 1 is not financially sound to acquire such a valuable property. According to the learned counsel for defendant No. 1 while deposing before the Commissioner plaintiff's witness avoided to produce the documents that would have exposed his financial credibility and liquidity. Plaintiff in his deposition stated that he is proprietor of Star Auto Mobile since 1985 and is paying tax since then regularly ranging from Rs.20,000 to Rs.1,50,000 annually but, he declined to produce the Bank's statement, income-tax and wealth tax assessment orders on the strength of legal opinion of his tax adviser, Exhs.18 and 18/11, unless directed by this Court. It was contended by defendant No. 1's counsel that the documents called for are necessary to establish that the plaintiff is not a person of means and his financial liquidity is doubtful. Learned counsel referred to Order 26, rule 17, C.P.C. `to impress that the Commissioner has same powers, as that of Court to direct production of any documents as may be necessary and since now matter is before Court this Court may under circumstances direct production of said documents. Learned counsel appearing for the plaintiff contended that the documents cannot be ordered to be produced at the whims of any party and the Courts have no jurisdiction to cause production of such documents suo motu. According to Mr. Sharif, learned counsel for the defendant No.2 such orders cannot be passed without there being a formal application. It is further urged that the documents can only 'be ordered when it relates to any matter in issue and since it is a suit for specific performance the flow of sale consideration or otherwise the liquidity and resourcefulness of the plaintiff are not determining factors, as a person seeking specific performance may beg, borrow, or steal money to claim specific performance and source of such consideration is not relevant. It was urged that, under Article 14 of Qanun-e-Shahadat, if any document is called for or required to be produced the same is not produced and 'then at the best adverse inference could be drawn. In support of his contention he has relied upon AIR 1954 SC

700. It was further argued that Income-tax Assessment Order confidential documents cannot be directed to be produced. Adverting to first question as to under what circumstances a Court can direct production of documents. Code of Civil Procedure lays down elaborate procedure where under documents sought to be relied upon may be produced or caused to be produced by a. party to the proceedings. First stage in a suit for production of documents for the plaintiff is at the time of filing of suit or presentation of plaint (Order 7, rule 14, C.P.C.) and for the defendant is at the time of tiling of written statement (see also 1991 SCMR 1935) if first stage is not availed of and a party considers that a document he seeks to rely upon in support of its claim or defence is in possession or control of other, then recourse to Order 11, Rule 1, C. P. C. may, be had whereby a party may be called upon to deliver interrogatories and in case it , is not followed then a party to the proceedings may take recourse to Order XI, rule 12, C.P.C. and call upon other party to disclose all the documents in his possession relating to the question, in issue. On disclosure of such documents same can be sought to be produced and inspected under the order of the Court. On the first date of hearing i.e. date of framing of issues, parties to the suit. are required to produce all the documentary evidence of every description in their possession or power on which they intend to rely and which has not already been filed in Court (Order XIII, rule 1, C.P.C.) or where the Court is of opinion that issues cannot be correctly framed without inspection of some documents not produced in suit Court may compel the production of any such document 'by the person-in whose possession or power it is (Order 14, rule 4, C.P.C.) such exercise was neither undertaken by they defendant No.1 nor necessity was felt by the Court at the time of framing of issues to call for any such document. At the time of evidence a party seeking to rely upon a document which is in the possession/control of the party entering the witness-box then recourse may be had to Articles 76/77 and 159 of the Qanun-e Shahadat Order', 1984, calling upon such a party through notice to f produce the same and if notice is not complied with the requisite essentials for adducing secondary evidence by producing copy of such documents become available unless it is privileged or classified documents. It may be noted that in this case the plaintiff is in witness-box, but no 'notice to produce the documents has been given and the Court is required to issue direction to compel production of documents, which defendant No. 1 considers necessary to discredit the plaintiff's assertion or claim. As noted above, Court can direct production of any documents which in its opinion is necessary for striking any issue in terms of Order 14, rule 4, C.P.C. such stage is over, now at this juncture, when the ,plaintiff/witness is in witness-box no notice for production of documents as required under Articles 76/77 and 159 of Qanun-e-Shahadat Order has been given, the Court may only direct production of document in .exercise of powers under Article 161 of the Qanun-e-Shahadat Order, 1.984 which reads as follows:-- "Judge's power to put questions or order production.

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any documents or thing; and, neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court to cross-examine any witness upon any answer given in reply to any such question: Provided that the judgment must be based upon facts declared by this Order to be relevant, and duly proved: Provided also that this Article shall not authorize any Judge to compel any witness to answer any question or to produce any documents which such witness would be entitled to refuse to answer or produce under Articles 4 to 14, both inclusive, if the question were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Article 143 or- 144; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted. " Article 161 quoted above, gives wide power to the Court to compel a witness to answer any question or to produce any document that Court may think is necessary or relevant to discover the truth of obtain proper proof of the -relevant fact. Such powers, however, are to be used with great care and only when it is absolutely necessary in the interest of justice (for reference see State v. Balahadri Dass Sutradhat PLD 1962 Dacca 467 (D.B.) and Kanchan Ali v. Shahialian PLD 1962 Dacca 192 (D.B.)). It is only when, Court feels necessary, it may put any question or compel production of documents and not otherwise, in doing so Court is not swayed by the whims and fancy of any party nor can any party persuade the Court to put any question to a witness or to direct production of documents. Powers under Article 161 are to be exercised by the Court itself on its own independent evaluation and assessment of the case. If any party considers productions of any document necessary, such party may have recourse to the provisions as discussed above, but a party cannot compel a Court to exercise its power merely because a party considers production of any documents necessary for proving its own case, or to discredit the case of other party. Having arrived at a conclusion that powers under Article 161 are to be exercised by the Court with circumspection in the interest of justice on its own accord and initiative, where it is of the opinion that production of any document is relevant and necessary for the just decision of the case. Necessity and relevancy of the document must be felt by the Court itself and not at the behest or motion of any party. Courts are required to maintain their neutrality and impartiality while exercising such powers, otherwise, Court may be blamed of siding with a party in its expedition to fish evidence or to fill up the lacuna in the case. Since the defendant No. 1, has not served any notice calling upon the plaintiff, who is in witness-box, for production of the documents that are considered necessary by him under circumstances. I do not feel inclined to compel or direct the plaintiff to produce any such documents at the motion of defendant No.

1. Q.M.H./M.A.K./M-284/K Order accordingly.