1986 PLP 850 (CLC)

Qaisar Mahmood Shafi for Respondents. This application has been filed to revise the order of the 1 Administrative Civil Judge dated 18‑3‑1972, whereby he rejects petitioner's application under the Explanation to Order XVIII, r Order XVI, rule 1 and Order XIII, rule 2, C.P.C. for permis: produce additional witnesses and a promissory‑note.

2. The petitioners are defendants in a suit for pre‑empti view of the onus on issues framed in the suit, they started evidence first. On 21‑12‑1971, after examining two witnesses closed their side except for the production of Makhdoom Mohsin Ahmad Yar defendant, the Patwari, and Ghulam Issa D.Ws. a documents. Subsequently, on 14‑2‑1972, the Patwari and Ghul< were examined but Makhdoom Mohsin Shah was given up, leavir Ahmad Yar to be examined. A month thereafter i.e. on 14‑3‑19' moved the application which was rejected by the impugned

3. Admittedly, the pro‑note had not been cited earlier as a d< to be relied on in defence of the suit. The only document mention their written statement was a deed said to be an agreement to land in question. It is‑stated that the amount of the consideration the sale was Rs.20,200 of which Rs.8,200 had been paid in for the balance of Rs.12,000 the pro‑note in question had been e in the presence of the said Makhdoom Mohsin Shah, and that the document is relevant and important. Unfortunately the itself does not make any mention of the pronote. It is submit the pro‑note had been executed later. In that case the def should have cited this document at the earliest appropriate did not do so. It is contended that the defendants, even though their side, had reserved their right to produce documents in and as such the pro‑note being such a document could be produced.

4. The revision petition is contested on the ground that the petitioners/ defendants who had reserved the right to produce documents, could produce only such documents as had already been cited by them but not some other documents not so cited. It is submitted that no satisfactory cause had been shown for not having cited or produced the pro‑note earlier in the proceedings. It is also submitted that the pro‑note could not be said to have any relevance because of there being no mention therein that the amount, involved had formed part of the consideration for the sale of the land in dispute.

5. Order XIII, rule 2 makes it very clear that no documentary evidence in the possession or power of any party which should have but has not been produced in time, shall be received at any subsequent stage unless good cause is shown to the satisfaction of the Court. It can be said and has indeed been held in L.I.T. v. Khuda Bakhsh Meraj Din P L D 1956 Lah. 252 that the object of the rule is not to execlude genuine documents. Nevertheless, a party which is in possession of a document and has been in a position to produce it at the appropriate time cannot be permitted to produce it at a belated stage unless good cause is shown and particularly when its late production is not to l delay the trial of the suit. In the present case the cause shown is by no means satisfactory. As observed by the learned lower Court, the relevancy of the pro‑note is also not clear on the face of it because there is no mention in it that the amount therein had been part of the consideration of the sale of the disputed land, nor is there any mention in the agreement itself that payment of a part of the consideration amount was to be in the form of pronote. The objection that the belated production of the pronote was likely to delay the trial, should the execution be denied by the other side, is also not without force. It was observed in L.I.T. v. Sh. Karamat Ali P L D 1959 (W.P.) Lah. 597 that wanton disregard of the provisions of the law relating to the production of documents cannot and should not be countenanced. In Transoceanic Steamship Company Ltd. v. Issak Haji Shakoor Haji Jamal Co. etc. P L D 1960 Dacca 885 tally slips pertaining to condition of ship cargo in custody and control of the defendant shipping company produced at the last minute was not relied upon.

6. Order . XVIII, rule 2 is clarificatory in nature and is to the effect that the said rule does not affect the jurisdiction of the Court to direct any party to examine any witness at any stage. The Explanation had come up for discussion in L.M.C. v. S.A. Rahim etc. P L D 1973 Lah. 391 and it had been observed: "The said provision is more of a rule of enquiry and as equity does not help the indolent it cannot be successfully argued that because there is no bar to exercise that power the Court below has in any manner failed to exercise jurisdiction so vested in it." Thus the Explanation is of no help to the petitioners in the circumstances of the present case. Nor is the provision of Order XVI, rule 1 of any assistance to the petitioners.

7. Learned counsel for the petitioners relied on the cases reported in:‑ P L D 1959 Lah. 70 and P L D 1963 S C

382. In the first cited case, it had been ruled that where the plaintiffs side had been closed and the plaintiff had later prayed for recording her statement, the prayer could be allowed in the inherent powers of t 'Court and would not occasion the exercise of the review jurisdiction under Order LVII. The ruling is however of no avail here, because is nobody's case that the trial Court did not have the power to the prayer. In the second cited case, my attention was drawn to t following observation made by Kaikaus, J. in his dissenting judgment I think the proper place of procedure in any system administration of justice is to help and not to thwart the to the people of their rights. All technicalities have to be avoid unless it be essential to comply with them on grounds of public policy." Beside constituting the minority view, the observation which had be made in relation to the exercise of the writ jurisdiction has no dir application to the present matter which is governed by Order XI rule 2.

8. The rejection of the application by the trial Court is based reasons and does not suffer from any jurisdictional defect such would justify the invoking of the revisional power of this Court. Otherwise the exercise of a discretion by the trial Judge is not to interfered with particularly when there is nothing capricious or arbiter about it. See and others v. Kanwar and others A I R 1933 L

892. The revision petition is, therefore, dismissed. There shall be order as to costs. H . B . T . Revision petition dismissed