P L D 1956 Lahore 252 (PLP)

KAIKAUS, J.

‑This is an application in revision against the order of Mr. Ghulam Dastgir, Civil Judge, Lahore, refusing to admit certain documents in evidence on the ground that no good cause had been shown for their non‑production at the first hearing of the suit in accordance with Order XIII rule 1, Civil P. C. The suit out of which this petition arises has been filed by the respondent on the basis of an agreement between the parties for the construction of a building for the defendant petitioner, that is, the Lahore Improvement Trust. There was between the plaintiff; and the Lahore Improvement Trust an agreement for the construction of 40 quarters on the Montgomery Road. The plaintiff started construction, but after sometime he was stopped by the Trust which commenced employing its own labour for construction. At this the plaintiff filed the present suit for an injunction restraining the Trust from building the quarters itself. On the day fixed for evidence, the defendant wanted to produce some docu ments from a file of its own, but no list of reliance had been filed at all and the documents though in the possession of the defendant had not been produced at the first hearing. For these two reasons the learned Civil judge refused to admit them. Learned counsel for the defendant‑petitioner urges that the documents to be produced are public documents, for under section 93 of the Town Improvement Act all officers and servants of the Trust are public servants and under section 99 the records of the Town Improvement Trusts can be proved by certified copies. These documents, he says, are of undoubted authenticity, and their non‑production at the first hearing and the absence of any list are due to an oversight on the part of counsel who appeared for the Trust in the trial Court. Learned counsel for the respondent relies on the wording of Order XIII, rule 2, Civil P. C., and contends that no good cause for non‑production having been shown, the documents have been properly rejected. For a proper inter pretation of Order XIII, rule 2, Civil P. C., it is necessary to quote here the various provisions in the Civil P. C., relating to the exclusion of documentary evidence. They are Order VII, rule 14.‑(1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. (2) Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint. Order VI1, rule 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 accord ingly shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (2) Nothing in this rule applies to documents produced for cross‑examination of the defendant's witnesses; or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory. Order VIII, rule 1 (with the Lahore amendment).‑(1) The defendant may, and, if so required by the Court, shall at or before the first hearing or within such time as the Court may permit, present a written statement of his defence; and with such written statement, or if there is no written state ment, at the first hearing, shall produce in Court all documents in his possession or power on which he bases his defence or any claim for set off. (2) Where he relies on any other document as evidence in support of his defence or claim for set off, he shall enter such documents in a list to be added or annexed to the written statement, or where there is no written statement, to be presented at the first hearing. If no such list is so annexed or presented, the defendant shall be allowed a further period of ten days to file this list of documents. (3) A document which ought to be entered in the list referred to in sub‑clause (2) but which has not been so entered, shall not, without the leave of the Court, be received in evidence on the defendant's behalf at the hearing of the suit. (4) Nothing in this rule shall apply to documents produced for cross‑examination of plaintiff's witnesses or handed to a witness merely to refresh his memory. Order XIII, rule 1.‑(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, and all documents which the Court has ordered to be produced. (2) The Court shall receive the documents so produced provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs. Order XIII, 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 require ments 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. The Code divides documents into two categories; (i) those on which a party bases his claim or defence and (ii) those on which he relies as evidence in support of his claim or defence. The documents in the first category are to be produced with the plaint or the written statement. If not so produced, they cannot in the case of the plaintiff be produced except with the leave of the Court under O. VII, rule 18, Civil P. C. With respect to the defendant though there is an injunction to produce such a document along with the written statement no penalty for non‑production is provided. Docu ments in the second category have to be entered in lists to be filed by the parties, and if not listed cannot be produced except with leave of the Court. For documents that are in the possession or power pf a party and on which they intend to rely there is a general provision in rule 1 of O. XIII for production at the first hearing and the penalty for non‑produc tion is contained in rule 2 of O. XIII according to which acceptance in evidence is dependant on showing good cause for non‑production. It will be observed that whereas in O. VII, rule 18 and O. VIII, rule 1, Civil P. C., the only requirement in cases of default by the party is leave of Court, under O. XIII, rule 1, the requirement is showing of " good cause for non‑pro duction". It is urged by learned counsel for the respondent that in cases where O. XIII, rule 1, is not complied with by a party, the Court is not concerned with the genuineness of the document that is sought to be produced or with its effect on the decision of the suit. Though the document be admittedly authentic and though it be decisive of the point in dispute between the parties, it cannot he contends be received in evidence unless the party is able to show good cause for non‑production at the first hearing. According to learned counsel it is essential for the party to show that in spite of due diligency the party was unable to produce the document on that date. If the non‑production be due to some negligence (and oversight, he says, is negligence), the document cannot, according to the plain wording of O. XIII, rule 2, Civil P. C., be admitted in evidence, for good cause excludes any negligence. I have to determine whether this interpreta tion for O. XIII, rule 2, is correct. That such interpretation will lead to manifest injustice can be demonstrated by an example. Suppose a party files a suit for declaration of his title as to large property and he has in his possession a registered deed executed by the defendant with respect to the property in dispute which deed establishes his title beyond doubt. Now suppose the counsel for the plaintiff with whom the document is lying, on account of want of due care, fails to bring it to Court on the day when issues are struck (and a date fixed for evidence), but puts in, the document the very next day and applied for its reception in evidence. The defendant opposes the application. When asked as to whether the document is genuine the defendant admits it is. The defendant has notice too of the fact that this document was to be produced against him for it was entered in the list filed with the plaint. But the defendant rent urges that the authenticity of the document and the fact that he had full notice about its intended production are irrelevant, for according to O. XIII, rule 2, it cannot be received "unless good cause is shown to the satisfaction of the Court for the non‑production thereof and the non‑production was due to negligence. Will the Court then reject the document on the ground that it is only concerned with the reason of its non production on the first hearing of the suit and that reason is not good cause' because it involves some negligence It could hardly be the intention of the legislature that in the circumstances mentioned above the document should be rejected. Yet if we are to accept the words of rule 2 as meaning that only good cause for non‑production on the first hearing can enable the document to be produced and "good cause" excludes negligence this result is inevitable. If we are to avoid this result, we must not put a literal interpretation on the words used. A comparison of rule 2 with the other provisions, which I have quoted above, will lend support to the view I take. As I have already pointed out if the document which is the basis of the suit is not produced in Court along with the plaint in accordance with O. VII, rule 14, the only restriction on its production later is that the leave of Court is required and there are no words limiting the grant of leave to cases where there is good cause for non‑production at the time when the plaint is presented. Can there be any good reason for this distinction? Similarly, the power of Court to grant leave in cases where a document is not mentioned in the list is not in any way limited. Statutes are to be interpreted with due regard to their objects. The object of O. XIII. rule 2, was to exclude forged documents and to expedite the trial and not to exclude genuine documents. If there be no doubt as to the authenticity of a document and if at the same time its admission were not in any way to delay the trial of a suit, words of. rule 2 should not be allowed to bar its production. What then is the interpretation which can be consistent with the object of the statute and yet will not unduly strain its wording? It appears to me that the only reasonable construction of the words " unless good cause is shown for the non‑production thereof" is to construe them as meaning e "unless good cause is shown for reception in evidence in spite of such non‑production." In using in rule 2 of O. XIII, the words "unless good cause is shown for non‑production" the legislature was emphasizing the need of considering the reason for non‑production with a view to deciding whether the document may not be fabricated and did not intend to provide that the effect of non‑compliance with O. XIII, rule 1, should be entirely different from non‑compliance with other con nected rules. The effect of the rule is only to make the reception of documents dependent on leave of Court. If the document be authentic and the delaying effect be negligible there should be no objection to its being produced. That it is permissible to depart from the literal meaning of words by reference to the object of a statute is well established F It is stated in Maxwell's Interpretation of Statutes (page 85 Ninth Edition). " Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the Legislature is presumed not to intend, and a construction which would lead to any of them is, therefore, to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical con struction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the Legislature. It is regarded as more reasonable to hold that the Legislature expressed its intention in a slovenly manner, than that a meaning should be given to them which could not have been intended." Similar words will be found at page 55. " The words of a statute, when there is a doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained." Although I am unable to find any case where the interpretation of the words "unless good cause is shown for the non‑production thereof " may be discussed, there are a number of cases wherein it has been held that if the documents to be produced are public records about the authenticity of which there can be no doubt they should ordinarily be admitted in evidence in spite of non‑compliance with a procedural provision relating to their production. Vide Ramaswami Chettiar and others v. Tyagaraja Pillai and others (A I R 1928 Mad. 516), Chidambat'a Chettiar v. Parvathi Achi (A‑I R 1925 Mad. 744), Naraini Koer and others v. Gena Missir and others (A I R 1929 Pat. 324), Jagdip Pandey and others v. Mst. Taibunnissa and others (A I R 1924 Pat. 208), Sm. Buchibai v. Nagpur University (A I R 1946 Nag. 377), Kamod Singh v. Khemkaran (A I R 1927 Nag. 269), Muhammad Tabarak Ali Khan v. Dalip Narain Singh Bahadur and others (A I R 1927 Pat. 117) and Narendra Narain Rooj v. Jnanada Dassi (A I R 1937 Cal. 537). In almost all these cases documents were admitted at a late stage on account of their being authentic and without reference to the reasons for non‑production. In Naraini Koer and others v. Gena Missir and others, Fazl Ali and Das, JJ., had set aside the orders of the lower Courts refusing to receive documents which were tendered late on the ground that this was too technical a view and where the authenticity was not doubtful documents ought to be accepted. In Muhammad. Tabarak Ali Khan v. Dalip Narain Singh Bahadur and others, the learned Judges had held that the trial Court "had complete discretion to admit documents though filed late." This would not be correct if the documents were to be admitted only on proof of good cause for earlier non‑production. In Imambandi and others v. Haji Mutsaddi and others (A I R 1918 P C 11), their Lordships of the Privy Council had said " Rule 1, O. XIII, of the Civil P. C. 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." There is no doubt that the precise question which is before me was not before their Lordships but the fact that their Lordships did not state any limitations on the discretion of the trial judge, does support the view I am taking. Two later cases of the Privy Council should put the matter beyond doubt. In Kumar Gopikar Raman Roy v. Atal Singh and others (A I R 1929 P C 99), their Lordships of the Privy Council had said while dealing with O. XIII, rule 2, Civil P. C. " This rule of exclusion, however, only comes into operation when the documents on which the parties rely should have been, but were not, produced at the first hearing. Now, according to the evidence at the date of the first hearing, these docu ments were not in the possession or power of the plaintiff, and the plaintiff' and his advisors did not know of their existence so as to enable them to inspect them and form an opinion as to whether they would rely on them or not. In these circumstances it cannot be said that they should have been produced at the first hearing and, therefore, the rule does not authorise the exclusion. Further as has been held in India, even where the rules of exclusion apply and the documents cannot be filed without the leave of the Court, that leave should not ordinarily be refused where the documents are official records of undoubted authenticity which may assist the Court to decide rightly the issues before it." I 'refer to the last portion of this paragraph where their Lordships say that even if the rule of exclusion applies, leave should not ordinarily be refused if the documents are official records of undoubted authenticity. There is no doubt that in the case before their Lordships some reason for non‑production did exist but there can be no doubt too that their Lordships put the case in the alternative and even on the assumption that the rule of exclusion applied their Lordships were of the opinion that leave to produce authentic documents should not be refused. I have no reason to assume that their Lordships of the Privy Council in the latter part of this passage used words which go further than what their Lordships intended to lay dawn. The words "as has been held in India" are in this connection important. Their Lordships were apparently approving of the view that had been taken in India. What were the cases to which their Lordships were referring? They were obviously the cases, some of which I have cited above, in which the view had been taken that leave to produce should not be refused. Learned counsel for the respondent has referred to Allah Ditta v. A. F. Ahmad (P L D 1954 Lah. 608), wherein the learned judges after quoting the passage in Kumar Gopikar Raman Roy v. Atal Singh and others, which I have quoted above said: ‑"Their Lordships were in no small measure influenced by the fact that the plaintiff and his advisers did not know of the existence of their documents." The learned Judges have not said that their Lordships did not lay down a rule or that the rule was dependent on ignorance of the existence of documents. Their Lordships had said clearly that if the documents were not within the knowledge of the plaintiff and his advisers the rule of exclusion did not apply at all. Their Lordships had then added that even in cases "where the rules of exclusion apply", documents of undoubted authenticity were, according to what had been held in India, ordinarily to be admitted in evidence. A careful reading of the judgment would leave no doubt as to what their Lordships were laying down. As I have stated the reference to the view in India is important and the subsequent case before their Lordships (which was not cited before the learned judges in Allah Ditta v. A. F. Ahmad, also supports the view I take. I am referring to Kanda and others v. Waghu (Pak.. L R 1950 Lah. 192 : P L D 1949 P C 270) wherein their Lordships have further clarified the matter. In that case the trial Court had refused to admit certain official records in evidence after the cases of the parties had been closed. It was urged before their Lordships that according to the rule laid down in Kumar Gopikar Raman Roy v. Atal Singh and others, the documents should have been admitted. Their Lordships reiterated the rule and said it would be a wise exercise of discretion to admit such documents but their Lordships pointed out that the rule they laid down did not wholly take away the discretion of the trial Court to refuse to admit documents. Following is the passage which deals with this point:‑ " On the question whether the Subordinate judge erred in refusing to admit the two documents, Mr. Parikh laid stress on the case of Gopikar Raman Roy v. Atal Singh and others, where Sir John Wallis, in delivering the judgment of the Board, said that where the rules of exclusion apply and the documents cannot be filed without leave of the Court, that leave should not ordinarily be refused where the documents are official records of undoubted authenticity, which may assist the Court to decide rightly the issues before it. It would be erroneous to read these observations as implying that there is no discretion left in a trial Court when it is a matter of admitting public records at a late stage. The Court has a discretion and while, generally speaking, it will be a wise exercise of the discretion to admit such evidence, the question must be decided in each case in the light of the particular circumstances." These Privy Council judgments establish that ordinarily authentic documents should not be refused though produced at a late stage. Of course the Court has a discretion in the matter and if the reception of the document was to have a serious delaying effect, the Court would be justified, with due 'l regard to the circumstances of a case, in rejecting the docu ment. One aspect of these judgments is that their Lordships have regarded the authenticity of the document as a very important factor in determining whether it should be admitted in evidence in spite of non‑compliance with O. XIII, rule 1, Civil P. C. This is inconsistent with the interpretation' of O. XIII, rule 2, Civil P. C., by learned counsel for respondent according to which the only relevant factor is "good cause for non‑production." I would sum up the arguments against the interpretation put upon O. XIII, rule 2, Civil P. C., by learned counsel for the respondent as follows :‑ (i) The view would lead to manifest injustice as illustrated in the hypothetical case which I have mentioned. (ii) It would not be consistent with the object of the rule. (iii) It would not be consistent with the connected rules of exclusion. (iv) It would be inconsistent with some Privy Council judgments. My interpretation of rule 2 of O. XIII is that good cause is to be shown for the reception in evidence of the document in question. There is a discretion in the Court to grant leave as there is in case of infringement of other connected rules. The Court is entitled to consider not only the reason for non -production but the authenticity of the document and the delaying effect of the reception in evidence of the document. In cases where the document is of undoubted authenticity, leave should ordinarily be granted but the discretion of the Court is there. Learned counsel for the respondent has relied upon Allah Ditta v. A. F. Ahmad (P L D 1954 Lah.608), to which I have already referred. In that case a jamabandi had been produced before the trial Court after the evidence of the parties had been closed and even arguments had been heard. The trial Court refused to admit the document in evidence. The learned judges of the High Court regarded the exercise of discretion as proper. The exercise of discretion is governed in each case) by the particular circumstances of that case. I have read the whole of that judgment and it does not lay down any proposition inconsistent with what I have stated. It remains now to consider whether the order of the learned Civil judge should in the view I take be set aside. The learned Civil judge has not taken into consideration the nature of the documents which the defendant wanted to produce. A simple reason for setting aside the order is that the Court has, without any document being actually tendered in, evidence, passed a general order refusing to accept in evidence any document in the possession of the defendant on the ground that the documents had not been produced in Court in accordance with O. XIII, rule 1, and no list of documents had been filed at all. The defendant, had simply expressed an intention of tendering some documents in evidence. The Court did not even enquire as to the particular documents which were to be tendered. That is why in the order of the learned Civil judge there is no mention of any particular document. The order is a general one debarring the defendant from producing document not already filed and in the posses sion of the defendant. The learned Civil judge was not called upon to pass such an order unless a document was actually tendered. If he had made enquiries as to the documents which were to be produced and the documents had been specified by the defendant's counsel that might have amounted to a tender of those documents in evidence. No one seems to have realized that this is not the proper procedure, for even in the petition before me no documents have been specified and I have had to find out from the learned counsel for the petitioner the documents that he wants to produce. These are three documents which the defendant wants to produce ; (i) the original agreement between the parties which is the basis of the suit ; (ii) a report by the Trust Engineer at page 163 of the file of the Trust relating to this agreement, and (iii) a report of the Chairman of the Trust at page 177 of the same file. I set aside the order of the learned Civil judge because it was passed without an actual tender of documents and because it did not consider the question of the authenticity of the documents which fact, according to their Lordships of the Privy Council and according to my interpretation of rule 2, O. XIII, Civil P. C., ought to have been considered. So far as document No. (i) is concerned, even learned counsel for the respondent does not object to its reception in evidence for it is the original of the agreement which is the basis of this suit and of which he has already filed a copy. I direct that all the three documents be admitted in evidence on payment of Rs.50 as costs to the plaintiff. This revision petition is accepted but there is no order as to costs. A. H. Petition accepted.