1994 PLP 1984 (MLD)

Briefly stated facts of the case are that Allama Muhammad Inayat Ullah petitioner, who is a defendant in a suit for specific performance of the contract filed by Ghulam Rasool respondent No.1 which is pending adjudication in the Court of learned Civil Judge, Mandi Baha-ud-Din respondent No.2, after closing of the evidence of the parties, filed an application for grant of permission to produce as additional evidence original agreement for sale dated 15-8-1989 on the basis of which agreement, the suit has been filed, a photo copy whereof is already on the file. It is also prayed in the application that necessary evidence to prove the said agreement for sale may also be allowed to be produced. This application was contested by the defendant-petitioner inter alia on the ground that the evidence having been closed, the plaintiff cannot be allowed to produce additional evidence inasmuch as the document sought to be produced was not appended with the plaint nor is there any reasonable cause for allowing the plaintiff to produce the document by way of additional evidence inasmuch as the said document is a private document and is forged. This application was accepted by the learned trial Court in its discretion vide order dated 22-9-1992 on the ground amongst other that photo copy of the document is already on the record, and that the document is a very strong proof of the matter in issue involved in the case hence the plaintiff should be allowed to produce the document by way of additional evidence. This order has been upheld in revision filed by the petitioner vide order dated 5-10-1992. In this writ petition, the defendant-petitioner has challenged both these orders as being illegal and without lawful authority:

2. Learned counsel for the petitioner has contended that the document in question was in possession of the respondent at the time of filing of the suit, therefore it was necessary that it should have been appended with the plaint and further that it being not a public document it could not have been allowed to be produced in evidence after the evidence had been closed and case was fixed for arguments, hence the learned two Courts below have exercised discretion in favour of the plaintiff illegally. According to the learned counsel, document in question should have been allowed to be produced in evidence after the evidence was closed as it will further delay the decision of the suit. The learned counsel has relied on the case of Ahmad Yar and others v. Kh. Khair Muhammad (1988 CLC 850).

3. I have considered the arguments addressed by the learned counsel for the petitioner. Admittedly the suit is filed on the basis of the agreement which has been allowed to be produced in evidence. A photostat copy of the said agreement is already on the record of the file. It, therefore, cannot be said that the petitioner will be taken by surprise if the document is allowed to be produced in evidence which document is the only proper evidence to be produced in order to determine the matter in issue effectively. It is true that it is not a public document yet authenticity thereof can be seen at the time when the same is produced in evidence and not prior thereto particularly when a photo copy thereof is already on the record. I have seen the order passed by the learned trial Court. Valid and lawful reasons have been taken into consideration while exercising jurisdiction in the matter. Discretionary orders passed by the learned trial Court and upheld by a revisional Court ordinarily cannot be challenged in writ petition unless and until it can be shown that the same are either whimsical, fanciful and arbitrary. Even otherwise the interim orders cannot be allowed to be challenged in writ petition inasmuch as the said orders are challengeable at the time of filing of an appeal against the final judgment and decree. See case of Ghulam Hussain and another v. Malik Shahbaz Khan and another (1985 SCMR 1925). All the procedures are meant to be used in aid of justice and not for entrapping the litigants. Merely because the document was not appended with the plaint cannot be a ground for refusing production thereof subsequently. See case Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) and Mirza All Khan v. Mst. Shahida Parveen and others (1992 SCMR 2112). Mere delay in disposal of the case is not a ground for refusing additional evidence. See case Rehman Dad and another v. Major Raja Sajawal Khan, etc. (1976 SCMR 350), wherein an order of refusal of appointment of local commissioner on the ground of delay was set aside. Resultantly I see no force in this writ petition and the same is, therefore, dismissed in limine. AA./M-1670/L??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.