P L D 1966 (W (PLP)

This is an application in revision from the order of the Senior Civil Judge, Campbellpur, dated the 13th of April 1964, allowing the plaintiffs in a case under custom to produce the copies of certain mutations on payment of Rs. 60, as costs, to the

2. One of the issues that arose out of the pleadings of the parties was. Whether the property in dispute is ancestral qua the plaintiffs and Chan Pir Shah? The plaintiffs examined the moharrir Patwari who prepared an excerpt, but omitted to refer to certain mutations with the result that when the case reached the arguments stage it transpired that the excerpt prepared by moharrir Patwari was defective inasmuch as the Patwari omitted to refer to certain mutations.

3. The plaintiffs, therefore, made an application on the 8th of January 1964, to the trial Court under section 151 of the C. P. Code for permitting the plaintiffs to produce the copies of those mutations which the moharrir Patwari had failed to incor porate in the excerpt prepared by him.

4. The application was resisted by the other side mainly on the ground that it was belated and that section 151,E C. P. Code was inapplicable.

5. The learned Senior Civil Judge after hearing the parties decided to receive in evidence copies of certain mutations which the moharrir Patwari did not incorporate in the excerpt prepared by him. The trial Judge referred to a number of decided cases in support of the view that leave should not ordinarily be refused on technical grounds where the documents sought to be produced consist of certified copies of official records of undoubted authenticity.

6. A preliminary objection was raised by learned counsel for the plaintiff‑respondents that the revision was not competent inasmuch as the trial Court had passed the impugned order in exercise of its discretion. Learned counsel for the other party rejoined that the High Court has ample powers under section 115 of the C. P. Code to interfere where it finds that the discretion was exercised by the trial Court not in consonance with the established principles of justice. After giving due consideration to the matter, I am clearly of the opinion that this Court has the jurisdiction to correct the error provided it is found that the subordinate Court has in the given case acted in the exercise of its jurisdiction illegally or with material irregularity. The preliminary objection is, therefore, overruled.

7. The contention that the plaintiff‑respondents had other remedy available under a certain provision in the Code of the Civil Procedure and that inherent powers under section 151 of the Code could not be invoked is without substance inasmuch as there is no other specific remedy provided in the Code, except by way of an application under Order VII, rule 18, C. P. Code to the B Court for permission to produce documents and if as a result of mistake section 151, C. P. Code was mentioned by the counsel in the heading of the application, it cannot be held that the application was not competent and should have been dismissed. Sirajuddin v. Muhammad Sharif (P L D 1963 Kar. 883) cited by the learned counsel for the petitioners is not directly in point.

8. The limitation on the powers of the subordinate Courts as regards the reception of documents in evidence is to be found under Order VII, rule 18, C. P. Code. The relevant portion of Rule 18 reads :‑‑ "18 (1) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced, or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit."

9. It will thus be seen that under Order VII, rule 18, C. P. Code, the Court has the jurisdiction in appropriate case to allow the plaintiff to produce documents at any time at the hearing of the suit. In Imambandi v. Mutsaddi (45 I L R 878) their Lordships held that: "Order XIII, rule 1 of the Civil Procedure Code, 1908, requires the parties or their pleaders to 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". But it does not exclude the discretion of the Court to receive any such documentary evidence at any subsequent stage".

10. In the instant case, the plaintiffs in order to succeed had to prove that the land was ancestral. The excerpt prepared by the moharrir Patwari omitted to refer to certain mutations relating to the inheritance of Saidan Shah. The plaintiffs, therefore, made an application for permission to produce in evidence copies of mutations and the trial Court allowed them to do so. Learned counsel for the petitioner vehemently argued that the application should have been disallowed as it was sufficiently belated. Reliance in this connection was placed on a case decided by the Lahore High Court in 1935 Dasaundhi Khan and others v. Mst. Rabian Bibi and another (A I R 1935 Lah. 648). 1n the reported case, arguments were heard on 10th of March 1933, and judgment was reserved. Five days later, the plaintiffs' counsel made an application for permission to produce a certified copy of the pedigree‑table of 1892‑

93. The learned Judges who decided that case observed as under: "The learned Subordinate Judge rejected the application remarking that no document could be taken after arguments had been heard. It has not been shown that the plaintiffs, with the exercise of due diligence could not have obtained a copy of this document at the proper stage, nor has any other reason been shown for its non‑production before they closed their case. In these circumstances I have no doubt that the learned Subordinate Judge acted rightly in declining to receive it in evidence."

11. In the case before me in revision, learned counsel fort the plaintiff‑respondents inspected the file before arguments and found that the excerpt prepared by the moharrir Patwari was incomplete and applied to the Court for permission to produce in. evidence copies of mutation. I think, in the circumstances, it cannot reasonably be held that the plaintiffs did not exercise due diligence. It was primarily for the moharrir Patwari to refer to these mutations in the excerpt but he did not do so for reasons best known to him and the plaintiffs had no option but to seek permission of the Court for producing copies of mutations which they considered to be necessary for the success of the suit.

12. The decision in Sheikh Allah Ditta v. A. F. Ahmad & CO. and others (P L D 1954 Lah. 608) has no bearing on this case. In the case, referred to above, a copy of Jamabandi was not produced with the plaint nor was it included in the list of reliance. An application for admission of the Jamabandi in evidence was made on a date to which the case had been adjourned for orders. It was held that the document was rightly rejected by the trial Court. Kayani J., (as he then was) observed :‑

"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."

13. I need also refer to another decision reported as The Lahore Improvement Trust v. Sh. Karamat Ali (P L D 1959 Lah. 597), which is an authority for the proposition that: "wanton disregard of the provisions of the law relating to the production of documents cannot and should not be countenanced." In that case a letter of the plaintiff addressed to the defendant was sought to be produced when the case was fixed for arguments. The letter had not been included in the list of the documents relied upon: "Held, that there was no legitimate excuse for non‑production of the letter at the proper stage and that its reception was rightly refused by the trial Court."

14. In the case before me in revision, I am not inclined to hold that while exercising its jurisdiction the trial Court acted in contravention of any directory provisions of law or a general principle of law giving a party advantage over the other. I am order in my mind that the decision in S. Zafar Ahmad v. Abdul Khaliq (P L D 1964 Kar. 149) is inapplicable to the instant case.

15. I now proceed to examine whether the learned trial Judge exercised the discretion in disregard of any established principle of justice. River Steam Navigation Co. Ltd. v. The Commissioners for the Port of Chattagong and another (P L D 1961 Dacca 412) cited by Sh. Karim Bakhsh, learned counsel for the petitioners is instructive. Syed Haider Shah, learned counsel for the plaintiff‑respondents relied on : (1) Sm. Buchibai v. Nagpur University (A I R 1946 Nag. 377) Mudala Sithanna and others v. Kuppili Lakshmi narasimhulu (A I R 1940 Mad. 540) and Kumar Gopika Raman Roy v. Atal Singh and others (AIR 1929 P C 99) in support of the argument that the documents were necessary for the proper determination of the issue regarding ancestral nature of the property and that no prejudice was caused to the defendants by the reception of certified copies of mutations into evidence, even at a late stage by the trial Court. The weight of authority is in favour of the view taken by the trial Court. It is within the discretion of the Court to accept or reject a document. (See Idu and others v. Kanwar and others (A I R 1933 Lah. 892). I would accordingly hold that the exercise of discretion in the instant case by the trial Judge was neither illegal nor improper. The discretion was exercised to secure the ends of justice. No good ground for interference in revision is made out and the revision petition is accordingly dismissed, with costs. K. B. A. Petition dismissed.