2022 PLP 1008 (MLD)

RAJA SHAKEEL AHMAD, J.

The instant first appeal is directed against the judgment/order (hereinafter called impugned judgment) dated 25/09/2019, passed by the learned Referee Judge/District Judge Chilas, whereby he dismissed the application of the appellants Order XIII, Rule 2, C.P.C. up to the extent of agreement dated 13/11/2014 and 14/11/2015 and arbitration award dated 20/07/2017 and agreement dated 16/05/2017 and admitted remaining documents filed by the appellants/petitioners.

2. Facts giving rise to the filing of this appeal are that the present petitioners have filed a reference petition under section 18 of Land Acquisition Act bearing No. 155/16 before the Referee Judge/District Judge Chilas against the award passed by the collector land acquisition Diamer. During the pendency of the reference petition the petitioners filed an application under Order XIII, Rule 2, C.P.C. for production of some private documents which were according to the petitioners were related to the Reference filed by the petitioners. The learned Referee Judge after hearing the parties partially dismissed the application of the petitioners vide the impugned judgment dated 25/09/2019, hence this appeal.

3. The learned counsel for the appellants contended that that the impugned order dated 25/09/2019 passed by the learned Referee Court Diamer is contrary to law and facts on the record of the case as while passing impugned order on the application under Order XIII, Rule 2, C.P.C. the learned Referee Court has misread and miss-interpreted the document and also failed to apply judicious mind in accordance with the mandate of Order XIII, Rule 2, C.P.C. and travelled beyond the ambit of Order XIII, C.P.C. The learned counsel further contended that the impugned order is based on erroneous reasoning and incorrect ex-position of law and failed to apply prudent mind as such this act of the learned Referee Court will adversely affect to reach at the right conclusion and just decision of Court. The leaned counsels for the appellants further contended that the document agreement dated 13/11/2914 and 14/11/2015 and arbitration award dated 20/07/2017 and agreement dated 16/05/2017 have been accepted and admitted by the parties to the agreement and have also no objection by either party till now regarding the agreements, as such the above documents are termed as admitted documents having relevance with the reference petition but the learned Referee Court come to wrong conclusion while deciding Order XIII, Rule 2, C.P.C. and the impugned order of learned Court is based on presumptions and suppositions, hence the impugned order is liable to be set aside. At the end the learned counsels for the appellants requested that by accepting this appeal the petitioners may be allowed to produce the aforesaid documents in the learned Referee Court/Trial Court.

4. On the other hand, the learned DAG and Legal Advisors of the Respondents have controverted the arguments advanced by the learned counsels for the appellants by contending that, the appeal of the appellants is not maintainable because the order against which the appeal is filed is not an appealable order, although the impugned order could be challenged through revision petition but the appellants failed to submit the relevant documents along with appeal, even the impugned order attached with the appeal is incomplete, the documents which the appellants want to produce in the trial court are not part of this appeal. The learned AAG and LAs of the respondents further contended that all the above documents are private documents, and the petitioners have failed to provide the list of the above documents along with their reference petition, therefore the appellants couldn't be allowed to produce aforesaid documents in such belated stage. They further contended that, the so called agreements are un dated and un attested and were not produced or agitated at the time of notices issued under section 9 of the Land Acquisition Act, neither the appellants bother to submit the documents with the reference petition when it was filed before the collector despite the fact that all the above said documents are private documents. The Learned AAG and the respective LAs contended that all the documents are result of afterthought of the appellants and prepared by the appellants after submitting the reference at such belated state just to strengthen their cause, hence the Trial Court/Referee Court rightly dismissed the application of the appellants which should be maintained, and requested for dismissal of the appeal being devoid of merit.

5. We have heard the arguments advanced by the learned counsel for the parties and perused the record of the case minutely.

6. In order to appreciate the arguments of both the parties as well as the relevant law, it deem proper to quote the relevant provisions i.e. Order XIII, Rule 2 of Code of Civil Procedure, the same is reproduce as under: - "Order XIII: Rule

2. Effect of non-production of Documents. 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." It is admitted fact that documents which the appellants wants to produce are private documents, hence it could safely be inferred that the same were in possession of the appellant/petitioners, at the time of filing the reference petition. The Rule 1 of C.P.C. is mandatory as the parties or their pleaders shall produce, at first hearing of 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, in case of noncompliance of the above rule no documentary evidence shall be receivable at subsequent stage unless good cause is shown to the satisfaction of the court for its non-production. We perused the record i.e. application of appellants under Order XIII, Rule 2, C.P.C. and Reference petition under section 18 of Land Acquisition Act submitted before the trial Court, neither the appellants/petitioners averred in Reference Petition that the said documents are not in their possession and they shall soon after their recovery submit the same before the trial court neither any good reason or sufficient cause is mentioned in the application of appellants under Order XIII, Rule 2 for noncompliance of mandatory provision of law and non-submission of the documents during filing of reference petition. Although the appellants failed to submit the documents along with the appeal but the perusal of the said documents from the file of the counsels it reveal that, one document which is an agreement between an investor and owner of land for which stamp papers are issued in different dates, and the witness shown in the agreement have not put their signatures on the said agreement. The two other documents have been prepared after filing of the reference petition, meaning thereby that the documents are result of afterthought and appellants have prepared the same just to strengthen their cause. The documents which the appellants want to produce as piece of evidence are not public documents hence no presumption of truth is attached to them, rather all the above documents are managed by the appellants after filling of the reference petition. The appeal of the appellants is not maintainable because the order against which the appeal is filed is not an appealable order, although the impugned order could be assailed through revision petition but the appellants failed to submit the relevant documents along with appeal, even the impugned order attached with the appeal is incomplete, the documents which the appellants want to produce in the trial court are not part of this appeal.

7. In the light of foregoing reason, the findings of Trial Court/Referee Judge are not open to exceptions and that too in absence of any illegality or irregularity therein. No misreading and non-reading of law and facts has been pointed out by learned Counsel for appellants, in the impugned Judgments/order which could justify indulgence by this court.

8. As sequel to the above, instant Civil 1st Appeal No. 38/2019 being without any substance and devoid of merit is dismissed. File. ZH/5/GB Appeal dismissed.