P L D 1959 (W (PLP)

Dates of hearing : 22nd and 25th May 1959. This revision arises out of a suit instituted by Sheikh Karamat Ali, Advocate of Lahore for the recovery of Rs. 21,597/10/ from the Lahore Improvement Trust on account of his fees and Munshiana for the conduct on behalf of the Trust of about fifteen cases known as Chhota Ravi scheme cases. The case was instituted on 31st October 1957, and the written statement was filed on behalf of the Trust on 16th December 1957. Replication was put in on 8th March 1958. The case was fixed for admission of documents on four hearings, namely, 8th March 1958, 22nd March 1958, 25th March 1958 and 2nd April 1958. Issues were framed on 7th April 1958, and the case was adjourned to 10th May 1958, for evidence. On that day the statements of the plaintiff and his witnesses were recorded. Sheikh Karamat Ali appeared as (P. W. 3). He denied that he had made any commitment in writing giving a discretion to the Trust to make any payment of his fee bills in consideration of appointing him a part‑time standing counsel of the Trust at Rs. 475 p.m. with effect from 1st February 1957. The plaintiff closed his case. One witness for the defendant was examined and the case was adjourned to 17th May 1958, for the evidence of the Chairman of the Trust. Khan Bahadur Abdul Rahim, Chairman, of the Lahore Improvement Trust, appeared as (D. W. 2). He deposed that the plaintiff had applied for appointment as a Trust counsel, and as there was a dispute about the payment of some of his fee bills, the Committee thought it embarrassing to appoint him without settling that matter. He was consequently sent for and he stated before the Committee that he would accept whatever the Chairman of the Committee thought fit to pay him. It was decided by the committee that he should give an undertaking in writing to which he agreed and he was selected. The plaintiff then gave a letter in writing, and he (witness) assessed his fee at Rs. 3,600 in all. He remained a counsel of the Trust for about 11 or 12 months. The case was then adjourned for arguments to 10th June 1958, but on the 21st May 1958, an application was made on behalf of the Trust under Order XIII, rule 2, Civil P. C., for receiving in evidence the letter of Sheikh Karamat Ali dated 31st January 1957, and for examining Chaudhari Salam‑ud‑Din, Secretary, Lahore Improvement Trust to prove the letter. Notice of this application was given to the plaintiff. It came up for arguments on 30th June 1958, when counsel for the defendant withdrew the application on the ground that it required a little amendment, and intimated that he would put in a new application. The learned counsel for the plaintiff had no objection and the application was dismissed. The case was fixed for argument on 25th July 1958. On 3rd July 1958, another application was put in on behalf of the Trust under Order XIII, rule 2, Civil P. C., which is substantially the same as before. It prayed for permission to produce the letter of the plaintiff dated 31st January 1957, and for summoning the Secretary of the Lahore Improvement Trust to prove the plaintiff's signatures on it, on the ground that the plaintiff had not admitted the letter. The plaintiff put in a reply to this application on 16th July 1958. This matter was argued on 25th July 1958, and the Senior Civil Judge by order dated 29th October 1958, rejected the prayer. Against this order the present revision is directed.

2. The trial Court did not allow the request for putting in the plaintiff's letter dated 31st January 1957 on the ground that as the letter had been executed by the plaintiff given before the suit was instituted, it should have been produced on the first hearing or at least before the evidence was concluded, that all along it had remained in the possession of the defendant and there did not appear to be any fit reason for reopening the case at such a late stage to allow the defendant to produce the letter and to lead oral evidence to prove it.

3. The learned counsel for the Lahore Improvement Trust argues that the document is undoubtedly genuine, that its authenticity is not in dispute and that it could not be produced as it had not been attached to the correct file and thus could not be traced, for the plaintiff was a person of influence, and it was only after the evidence of the Chairman of the Improvement Trust that the document came to light and it transpired that the plaintiff had given the commitment, and it was on the directive of the Chairman that the document was traced out and there was thus good reason for its late production. It should therefore have been received by the Court, and now ordered that it may be received, and admitted. No affidavit was filed in the trial Court in support of the application nor was the document attached to the applica tion. It had not been relied upon in the list of reliance and it is explained that this was not done because the counsel for the defendant was not aware of the existence of the document. In support of the prayer, he relies on the Lahore Improvement Trust v. Messrs Khuda Bakhsh‑Meraj Din (P L D 1956 Lah. 252) and Muhammad Bakhtiar Khan v. Oari Bashir Ahmad and another (P L D 1957 Lah. 803). The learned counsel for the plaintiff‑respondent contends on the other hand that the trial Court exercised its discretion reasonably and fairly in not receiving the document at such a late stage, when the case of the parties had been closed and the case fixed for arguments, and the grant of the prayer would not only have unnecessarily prolonged the disposal of the suit but would have prejudiced the plaintiff's case. It is explained that the plaintiff had on 1st February 1957, cancelled in writing the letter dated 31st January 1957, and withdrawn the authority and power given to the Chairman of the Trust. A copy of the letter has been shown to me. It bears the seal of the Trust as having been diarised at No. 9999 on 1st February 1957 by the Trust. It is also argued that there is no case for interference in revision under section 115, Civil P. C., as there is no illegality or irregularity in the exercise of its jurisdiction by the trial Court. There is a contest between the parties as to whether the document was in Court when K. B. Abdur Rahim appeared as a witness for the defendant. The learned counsel for the petitioner contends that the Chairman had the letter with him when he gave evidence but its production was objected to on behalf of the plaintiff and was not, therefore, allowed to be put in or proved. The learned counsel for the respondent denies this. There is no note by the Court on the file that the document was attempted to be proved by K. B. Abdur Rahim and its production or proof was objected to on behalf of the plaintiff. Para. 8 of the defendant's application dated 3rd July 1958, states that it was after the evidence of the Chairman of the Trust that the document came to light and it transpired that a commitment on the part of the plaintiff was there and it was under the Chairman's directive that the document was traced out. The averment does not support the contention of the learned counsel for the petition that the document was in Court. It goes against his contention. The authenticity of the document is no doubt not in dispute but the document was all along in the possession of the defendant and the learned counsel for the defendant was aware of it because the plaintiff was asked questions in cross‑examination about this commitment in writing, giving a discretion to the Trust to settle his fee bills. It was the duty of the Trust to search for the document and to produce it at an early stage of the case. It should have been produced with the written statement if the Trust based its defence on it, as required by Order VIII, rule 1, Civil P. C., (as locally amended) and it should have been entered in a list to be annexed to the written statement. Rule 1 of Order XIII, Civil P. C., also directs that the parties or their pleaders shall produce at the first hearing of the suit all the documentary evidence of every description in their possession or power on which they intend to rely. This was not done. There can be no doubt that the Trust has been extremely negligent in not relying on the document entering it in the list or producing it before the Court as required by law. If the document is not produce in time, rule 2 of Order XIII, Civil P. C., provides that :‑ No documentary evidence in the possession or power of any party which should have been, but has not been produced in accordance with the requirements of rule I shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non‑production thereof ; and the Court receiving any such evidence shall record the reasons for doing so . On a plain construction of this rule, it is obvious that a party who has failed to produce a document at the proper stage has not the right to produce it at a subsequent stage. Its production can only be allowed if good cause is shown to the satisfaction of the Court for its non‑production at the proper stage and the Court' must record reasons for its reception. The reception of the document cannot be allowed as a matter of course but for special cause made out to the satisfaction of the Court and for reasons to be recorded. The law thus provides for the earliest production of documents allowing opportunity for later production in special cases only, i.e., for good cause shown which means that production cannot be allowed without cause and the cause should not be any cause but good cause which satisfies the Court that its fat production was not deliberate or through gross negligence. The defendant did not put in any affidavit in support of his plea nor showed that any effort had been made to trace it, and it could not be found. The plea that it was attached to a wrong file under the influence of the plaintiff is untenable, for in such a case it should have disappeared. On an examination of the circumstances surrounding the non‑production of the document, it is clear that there is no legitimate excuse for its non‑production at the proper stage. The document could even have been put to the plaintiff cross‑examination and thus proved, but even this was not done.

7. I may now examine the authorities cited at the bar by the learned counsel for the parties. In The Lahore Improvement Trust v. Messrs Khuda Bakhsh‑Meraj Din, Kaikaus, J., holds that :

" Ordinarily authentic document should not be refused though produced at a late stage. The Court has a discretion in the matter. If the reception of the document was to have a serious delaying effect, the Court would be justified, with due regard to the circumstances of a case, in rejecting the document. Authenticity of the document is a very important factor in deter mining whether it should be admitted in evidence The exercise of discretion is governed in each case by the particular circumstances of that case * * * * An order refusing to admit a document should be passed only after knowing the nature of the document". The order of refusal to admit the document made without knowing the nature of the document was set aside on that ground alone in revision.

8. In Muhammad Bakhtiar Khan v. Qari Bashir Ahmad and another, Kaikaus, J., held: " that whenever a document is produced before a Court to the admission of which objection is taken on the ground that it was not relied upon in the list of documents submitted by the party, or that it was not produced at the first hearing of the suit in accordance with Order XIII, rule 1, Civil P. C., the Court has to consider : (1) whether there are good grounds for the failure to enter it in the list or to produce it at the first hearing, (2) is there any doubt about the genuineness of the document ? (3) will the opposite party be prejudiced by the fact that it had no timely notice of the intention of the party to produce the document and if there be possibility of such prejudice, will there be too great a delay in the conduct of the case by granting the opposite party an opportunity to rebut this document ? Whether the delay will be unreasonable depends on the circumstances of each case". The trial Court should no doubt bear these important considerations in mind in making orders under Order XIII, rule 2, Civil P. C.

9. The learned counsel for the respondent on the other hand relies on Sheikh Allah Ditta v. A. F. Ahmad & Co, and others (P L D 1954 Lah. 608), Dasaundhi Khan and others v. Mst. Rabian Bibi (A I R 1935 Lah. 648), Idu and others v. Kanwar and others (A I R 1933 Lah. 892), Madhu Sudan Sinha and others (A I R 1933 Lah. 892), Nrisinha Charan Nandi Choudhari v. Batasi Dashi (A I R 1926 Cal. 106), Chidambaram Chettiar v. Parvathi Achi (A I R 1926 Mad. 347) and S. Vijiaraghavalu Naidu v. M. Rajamani Ayyar (A I R 1931 Mad. 512). It is only necessary to notice some of these authorities as they bring out the principle for decision by an appellate Court. A revisional Court is not in a better position and in fact, its powers ate more limited. In Sheikh Allah Ditta v. A. F. Ahmad & Co., and others a copy of a jamabandi was not produced with the plaint when the suit was instituted on 6th August 1946. Evidence was closed by the plaintiffs on 15th April 1948 and by the defendants on 18th October 1948. The case was adjourned for orders to 18th October 1948. On this date an application was made for the admission of the jamabandi in evidence. The trial Court rejected the prayer. It was held on appeal that:‑ "We should be clear as td what exactly the requirements of law are in the matter of admission of documents, and if legal practitioners ignore them, they not only delay the administration of justice but make themselves liable to damages in respect of their clients. Under Order VII, rule 14, where a plaintiff relies on a document, whether or not in his possession or power, as evidence in support of his claim, he shall enter such document in a list to be added or annexed to the plaint. Under rule 18 a document which ought to be entered in the list and which is not entered shall not, without the leave of the Court, be received in evidence at the hearing of the suit. Under Order XIII, rule 1 the parties or their pleaders shall produce, at the first hearing of the suit, 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. Under rule 2 no documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non‑production thereof ; and the Court receiving any such evidence shall record the reasons for so doing. In the present case, on the assumption that the document in question was not in the possession or power of the plaintiffs, a very liberal assumption in a land suit Order XIII will not apply. It was a document which, at the least, the plaintiffs should have included in their list of reliance. If they did not so include it, under Order VII, rule 18 they cannot, without the leave of the Court, produce it "at the hearing of the suit". It is questionable whether after evidence and arguments have been concluded the case can still be regarded as being at the stage of hearing, but even on that assumption the question would be whether the rule means anything when it makes the admission of a document subject to the leave of the Court. It means that where the Court thinks that the plaintiff or his counsel has been unduly negligent, discretion should be exercised against them. A document which is the mainstay of the plaintiffs' case and which would have been filed with the plaint by any intelligent counsel could not be allowed to be produced after the case is over. I am firmly of the opinion that discretion has been exercised in this case properly." Dasaundhi Khan and others v. Mst. Rabian Bibi and others was a similar case. In that case the plaintiffs wanted permis sion to produce a certified copy of a pedigree table which was refused by the trial Court. It was held on appeal that it was not shown that the plaintiffs with the exercise of due diligence could not have obtained a copy of this document at the proper time nor is any other reason given for its non‑production before they closed their case. In the circumstances the learned subordinate Judge acted rightly in declining to receive the evidence. These are cases in which permission to produce a document was sought after the hearing of the arguments while in the present case the request was made before the arguments were heard. In Idu and others v. Kanwar and others it was observed in second appeal that: "The acceptance or rejection of document produced at a late stage is a matter entirely within the discretion of the Court. Hence where a trial Court rejects a document which is produced at a late stage the High Court cannot interfere with the exercise of the discretion unless it is satisfied that the discretion has been exercised capriciously in an arbitrary manner and contrary to well‑recognised judicial principles".

10. It is not necessary to note the remaining authorities, as the observations in Idu and others v. Kanwar and others are fully applicable to the present case. The law requires a party to exercise due care and diligence in the prosecution and defence of a suit, and if a party is grossly negligent, it cannot expect indulgence at the hands of a Court. Order XIII, rule 1 (1), Civil P. C. requires him to produce a document in his possession or power at the first hearing of the suit and in case of non production at that stage to make out a good cause to the satisfaction of the Court for its non‑production. If this is not done, the Court is fully justified and should properly refuse to allow a document to be produced. The mere ground that a document is authentic is not a good causes for its non‑production at the proper stage, though the Court may thereby be induced to and should it, where cause is shown. Whether there is a good cause or not depends upon the facts and circumstances of each case. ' In this case good cause was not made out to the satisfaction of the trial Court and it was fully justified in not allowing the document to be produced. The permission to allow the document to be produced and proved by the Secretary of the Trust would have prejudiced the plaintiff's case for he would have been deprived of the opportunity to explain the circumstances in which the authority was given to the Chairman of the Trust to decide the amount of his fees, and to show that he had withdrawn the power and authority given to him. It was necessary for the defendant to take a stand on the document in his defence in his written statement, so that necessary issues were framed and evidence led. If a document was so important that the defence of the suit depended on it, the defence should have been taken in the written statement, which was not done, and the document should have been produced at the first hearing, or it should at feast have been relied upon in the list accompanying the written statement. This was not done. The trial Court has acted according to law. In view of what has been said above, there is no case for interference in revision with the discretion exercised by the trial Court in refusing to allow the document to be produced and proved in evidence.

11. The learned counsel for the respondent has further argued that this Court has no power under section 115, Civil P. C. to interfere in revision with the order passed by the trial, Court in its discretion. In N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras (A I R 1949 P C 156 = P L D 1949 P C 26) it has been laid down that "the section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) That the case is one in which the Court ought to exercise jurisdiction ; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law. There can be no justi fication whatsoever for the view that section 115 (c) was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate Courts." Thus the power to interfere in revision is a limited one. It exists only in cases where the order affects the question of jurisdiction, or where there is such an error of procedure in the course of the trial, which is material in that it may have affected the ultimate decision. C The order of the trial Court, which is challenged in revision, is in accordance with the provision of rule 2, Order XIII, Civil P. C. and the High Court can only set it aside if it can and D has the power to interfere under section 115, Civil P. C. It cannot allow the reception of a document as if it were the trial Court.

12. In view of the limitation placed by the law on the late reception of documents, it is the duty of the parties and their counsel to produce them with due care and diligence before the Courts at the earliest stage of the case as required by the law. If a party is negligent there is justification for showing him indulgence provided he shows good cause for the non‑production of the document. If he does show good cause, a genuine document ought to be received by a Court. If a document is produced at the proper stage, the Court has no option to refuse its reception and, therefore, the parties should comply with rule 1 (1) of Order XIII, Civil P. C. to take advantage of the provision of Order XIII, rule 1 (2), Civil P. C., and where it is not done, the law gives a discretion (of course to be exercised judicially) to the trial Court to accept it only if a good cause is shown, as the right of the party, to produce it has been lost. If no cause is shown by the party, there is no case for receiving a document at a later stage. It is imperative for the parties and their counsel to make out a case by affidavit or otherwise for the non‑production of the document at the proper stage. It has been noticed by me in several cases this is not done. This is inexcusable in such cases, for the law requires it of a party, who has been negligent, and it is his duty to make out a case for its non‑production. Wanton disregard of the provisions of the law relating to the production of documents cannot and should not be countenanced. The observations made in the three D. B. cases, cited above, make this clear. The view taken in these cases binds me. The attention of the counsel and the parties is, therefore, drawn again to the observa tions of Kayani, J., (now C. J.), reproduced above, in Sheikh Allah Ditta v. F. Ahmad & Co. and others.

13. The present case does not fall in the class of cases in which the order can be interfered with by the High Court under section 115, Civil P. C. The petition for revision is, therefore, dismissed with costs.

14. The parties have been directed to appear before the trial Court on 6th June 1959, when arguments of the parties shall be heard. The records of the trial Court shall be returned immedi ately to the Court. A, H. Petition dismissed.