P L D 2000 Supreme Court (AJ&K) 38 (PLP)

' MUHAMMAD YUNUS SURAKHVI, J.--This appeal, by leave of the Court, is directed against the order passed by the High Court on 18-6-1998, whereby the revision petition filed by the respondents w&" accepted.,.: ,: L

2. The necessary facts giving rise to the present appeal are that a suit f~ for possession on the basis of prior right of purchase in respect of surveNo.275, measuring 6 Kanals, situated in village Langerpura, Tehsil Muzaffarabad, was filed by e Syed Qalandar Shah, the,predessor-in interest of respondents.

3. After leading the evidence by the respondents, the appellants also led their evidence in rebuttal regarding issue of waiver. Respondent No.l appeared as his own witness in the trial Cot on 15-11-1997. . During his evidence the respondent tendered certain documents. The producti of documents was objected to by the counsel for the appellants and the objection was upheld. Thus, the trial Court refused to permit the respondents to pro s the documents. Later on an .alication was filed by the respdents, seeking permission to produce the aforesaid documents in evidence on 29-11-1997. The appellants submitted objections to the said application and the trial Court vide its order dated 15-4-1998 rejected the aforesaid plication. The respondents filed a revision petition against the said order before the High Court which was accepted vide order, dated June 18, 1998, and allod the production of documents by the respondents. It is the aforesaid order of the High Court which is the subject of the prest appeal.

4. Raja Muhammad Hanif, the learned counsel for the appellants, submitted with vehemence that the learned Judge in the High Court committed an erroby allowing the production of document while exercising powers under Order VII, Rule 18(2) of the Code of Civil Procedure at aelated stage. According to the learned counsel the relevant provision under which the documentcould have been allowed to be produced was Order XIII, Rules 1 and 2 of the Code of Civil Procedure provided good cause has been shown by the party intending to produce a document at a later stage. It was also submitted by the learned counsel for the appellants that the provisions of Order XIII; Rules 1 and 2 are to be read together with the provisions of Order VII, Rule 18(2) ofhe Code of Civil Procedure but in the application filed by the respondents for production of documents no such good cause has been shown. The learned counseonso pointed out that the trial Court vide its order dated 15-11-1997 declined to admit the docunts intended to be produced by the respondents but the said order was not challenged by the reondents through a revision petition or otherwise. Thus, the order dated 15-11=1997 became final and after that without challenging the same no remedy was avaible to the respondents: The learned counsel contended that theigh Court, by accepting the revision petition and allowing the production of documents committed an illegality.

5. In reply, it was contended by Sardar Rafiq Mahmood Khan, the learned counsel for the respondents that a plea of waiver was raised by the defendants in their written statement and the evidence was leed them on the said plea. The plaintiff-respondgnt could have pruced the relevant documents at the time of rebuttal of the saiissue. There was no earthly reason for the plaintiffs to produ the relevant documents alongwith the plaint as the plea was raised in the written statement and obviously in rebuttal of the issue of waiver the plaintiff-respondent was to produce the relent documents. The learned counsel submitted that in this view of the matter Order XIII, Rules 1 and 2 of the Code of Civil Procedure had no application in the instant case, rather Order VII, Rule 18(2) of the Code of Civilrocedure was the relevant provision which is an exception to the general rule. As regards the objection of the learned counsel for the appellant that the triaCourt vide its order dated 15--1997 disallowed the request of respondents for tendering the documents in evidence and the order had attained finality the learned counsel for the respondents submitted that under section 115 of C.P.C. the High Court had suo motu jurisdiction to rectify an order which has been passed in an illegal exercise of jurisdiction or with material irregulaty.

6. We have given our due nsideration to the arguments advanced at the bar and perused the relevant record. In bur view der XIII, Rules 1 and 2 of theode of Civil Procedure, as pointed out by the learned counseonr the. appellants, is to be re alongwith Order VII, Rule 18( which reads as under :-- "(1A document which ought to be produced in Court by the plaintifwhen the plaint is presented, or to be entered in the list to . added or annexed to the plai, 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. (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 defendanor handed to a witness merely to refresh his memory. "

7. Under Order VII, Rule 18(1) it is postulated that a document which ought to be produced in the Courby the plaintiff with the plai is to be presented and if the same. is not so produced shall not be received in evidence without the leave of the Court. Thus, a discretion has been given tohe Court to receive a documentt a subsequent stage even under rule 1 of the said order. Hower, sub-rule (2) seems to be anxception to the general rule which provides that nothing in this rule applies to the documentshich are to be produced in answer to any case set up by the dendant. In the instant case thelea of waiver was raised by the defendants in their written statement so the respondent had no earthly reason to produce the relevant document to rebut the plea of waiver alongwith the plaint. In a case reported as Messrs Asghar Ali & Bros. v. United Bank Ltd. 1987 CLC 504 while dealing with the provisions of Order VII, rule 18 the following observations were recorded:-- "Mr. Afzal Ahmed, learned counsel for the respondent had relied upon the provisions of Order VII, Rule 18, C.P.C. which bars the plaintiff to produce a document without the leave of the Court. I am of the view that this bar appli to the plaintiff only and there was no such bar against the defendant contained in Order VII, C.P.C. But, in any case, sub-rule (2) of Rule 18 of Order VII aows a facility to the plaintifto confront a defendant with a document which has not been proced earlier by the plaintiff and, therefore, on the analogy of this provision a similar facility should have been allowed in favour of the defendant . ..." In case reported as Lakhpat Pathak v. Ghiran Pathak and others AIR 1937 All. 55 it was observed st Order VII, Rules 14; 18(1), (2), Order VII, R.18 is exceptioto Order VII, Rule 18(1). In case reported as Puran Singh Relu Singh v. Mathra Das AIR 1934 Lah. 126, it was observed at page27 in the following way:-- "In substance .the plaintiff's attempt to produce this document was either a cross-examination of the witness or was intended to answer the case set up by the defendant, namely, that he had acteas an arbitrator and has, therefore, signed the document put in with the plaint. Though there was a vague reference to the "faisla" in the written statement, the position had not been cleared and the plaintiff did not fair know the defendant's case. Inhe statement before the issues counsel appearing for the defendant had not even been able to state whether the document put with the plaint was or was not signed by the defendant. Looking at the substance of the matter rather than the peculiar form due to the wrong procedure adopted, the question really fell under O.I, Rule 18(2), Civil Procedure Code, and the Court should not have refused the document."

8. The learned counsel for .the appellant relied on The Lahore Improvement Trust v. Sh. Karamat Ali PLD 1959 Lah. 597 which provides that under Order XIII, Rule 2 reception of document is not to be allowed as a matter of course but for special cause to be recorded in writing.

9. Similarly, in case reported as Sh. Allah Ditta v. Ahmed & Co. PLD 1954 Lah608, it was observed that copy of Jamabandi was neither filed with the plaint nor included in the list of documents relied. The prayer for production of a docent on a date when the Court had to pronounce the judgment was rightly rejected. e,

10. The above referred both the rulings e distinguishable as they deal with the case of plaintiff who has failed to file the documentslongwith the plaint in support of pleas raised in the plaint. e above authorities do not deal with the situation that if a plea has been raised in the written statement anti the plaintiff has to rebut it by producing certain documents.

11. The High Court under section 115 of the Codof Civil Procedure can suo motu correct the illegal exercise of jurisdiction by the Court below. Similarly this Court haWnhera powers under Order XLIII, Rules 1 to 5 of the Supreme Court Rules to do complete justice. Thus, in our view the order IE dated 15-11-1997 passed by the trial Court declining to admit the documents on behalf of the respondents was an illegal exercise of jurisdiction which is also set at naught.

12. In the light of what has been stated above, finding no force in this appeal it is hereby dismissed with costs. H.B.T./448/SC(AJ&K) Appeal dismissed.