2013 PLP 2846 (YLR)

MUHAMMAD FARRUKH IRFAN KHAN, J.

This Civil Revision is directed against the order dated 14-3-2013 whereby learned Civil Judge Lahore dismissed petitioner's application by declining to exhibit the documents tendered in evidence.

2. Petitioner filed a suit for the recovery of Rs.169,762,600 against the defendant. Trial Court framed the issues/additional issues out of the divergent pleadings of the parties. P.W.1 appeared as special attorney on behalf of Plaintiff Company while P.W.2 appeared as Director and presented special power of attorney executed in his favour and also tendered certain documents. Learned counsel for the defendant objected thereto necessitating the filing of application in terms of section 151, C.P.C. which was dismissed by the learned trial Court vide impugned order dated 14-3-2013.

3. Learned counsel for the petitioner contends that impugned order is perverse and being a nullity in the eye of law has caused miscarriage of justice. Adds that petitioner's application was wrongly dismissed quite summarily without taking into consideration the fact that documents intended to be exhibited form integral part of record and are germane to the adjudication of the lis on merit. It is also contended that the learned Judge while declining the prayer of the petitioner has misconstrued and misinterpreted the relevant provisions of Qanun-e-Shahadat, 1984, inasmuch as, the learned Judge has erred in law in comprehending the distinction between admissibility of a document and its probative worth. It is also contended that the learned Judge while passing the impugned order has drawn an erroneous assumption that the document under objection was issued by the Registrar of Companies and he alone is the competent person to furnish the same. To substantiate his assertions learned counsel placed reliance upon, PLD 2006 Karachi 511 Pakistan Engineering Consultants through Managing Partner v. Pakistan International Airlines Corporation, 2009 CLD 234 Karachi Pakistan National Shipping Corporation v. M.V Le Cong, 2007 CLC 1811 Trading Corporation of Pakistan v. Merchant Agency, PLD 1959 AJ&K 16 Abdus Samad v. Zaidullah, 1996 CLC 1457 (Peshawar) Haji Zarbadshah and 2 others v. Muhammad Nawaz Khan, 2009 CLC 940 Tariq Mehmood v. Contractor Ahmed Din and others, PLD 1992 SC 822 Khurshid Ali and 6 others v. Shah Nazar, 2000 MLD 507 (Lahore) Mst. Surayya Kausar v. Muhammad Asmat Ullah, 1991 SCMR 496 Riasat Ali v. Muhammad Jafar Khan and others and 2012 PLC (C.S.) 394.

4. Conversely learned counsel for the opposite side while controverting the assertions being made on behalf of the petitioner supports impugned order on the ground that the same has been passed with lawful authority and jurisdiction. He also placed reliance upon various citations, but on careful examination whereof, it was found that they have no nexus with the issue subject matter of the captioned petition.

5. Heard. Record perused. Pre-ponderance of the ratio in the aforesaid judgments, is that discretionary powers have to be exercised judicially and in reasonable manner. The authorities cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner, rather they are bound to act fairly and justly. (2012 PLC (C.S.) 394)

6. In the context of the ambit and purview of section 115 C.P.C., it was laid down that power conferred thereunder is exceptional but a necessary power intended to secure effective exercise of High Court's superintending and visitorial powers and correction of jurisdictional errors or material irregularities in proceedings of subordinate courts and that such power should not be inhibited by technicalities of procedure or entirely by the conduct of parties. (1991 SCMR 496)

7. As regards production of documentary evidence, it was also laid down that production of document and proof of document were two different subjects, document could be produced in evidence which was always subject to proof as required under Article 78 of Qanun-e-Shahadat, 1984. (PLD 2006 Karachi 511)

8. The crucial issue arising for determination in the present case hinges around genuineness and authenticity of document sought to be exhibited by petitioner. While confronting and dealing with identical situation, the honorable Supreme Court in case reported as 1992 SCMR 1778 Zar Wali Shah v. Yousaf Ali Shah and 9 others, through a celebrated and illustrious judgment laid down guiding principles to be followed by the courts and more particularly by the trial Courts. Relevant excerpt which is all embracing and binding is reproduced for the guidance of the trial Court:-- "It appears that the trial Court could have collected more evidence but failed to do so. Even if one or the other party had failed to produce all the material document/signatures, the court had ample power to do the needful so as to advance justice rather than injustice. The concept of bar against filling the gaps is no more available in the present Pakistan jurisprudence and the law; including the precedent law on Islamic principle; which are being made applicable progressively to the proceedings before the courts and other forums which are required to record/admit evidence. In the light of foregoing discussion there is no alternative but to allow this appeal and remand the case to the trial Court for fresh decision with the direction that all the legitimate facilities will be granted to both the parties not only to produce evidence but also to make necessary amendments in the pleadings and proceedings without, of course, permitting them to change the main positions in so far as the cause of action is concerned.

9. In the case reported as 2007 CLC 1811 Karachi supra it was laid down that "though no formal resolution was passed in a meeting for filing recovery suit against respondent, there did exist approval of the requisite number of directors who authorized filing of the suit-Absence of formal resolution, in circumstances, could only be treated as technical omission, which, in peculiar circumstances, could not be regarded as incurable defect".

10. In PLD 1992 SC 822 supra, it was laid down that "Courts are not only to sit and watch as to who commits a mistake and who does not commit a mistake, from amongst the litigants, and one who commits a mistake in procedural matters should be deprived of the right claimed, even if he is entitled to it".

11. By now it is well established that for fair administration of justice and adjudication of the issue (s), the trial Court is fully empowered to summon and examine any document/witness in order to do the complete justice in accordance with law. And that rules, procedure and technicalities could not obstruct the exercise of those powers. Rules are meant to promote the ends of justice and not to frustrate or defeat it. It is also a well known maxim known to all and sundry that Justice should not only be done but it seem to have been done and that Judge wears the law on his sleeves. Issues must necessarily be decided on merit rather than knocking out a party merely on technical grounds. Courts are vested with the authority and jurisdiction to ascertain the genuineness and authenticity of any document in order to arrive at a just and fair conclusion on the touchstone and parameters laid down by the superior courts for judicial scrutiny of oral as well as documentary evidence. Needless to emphasize that a document germane to the adjudication of the matter can be produced in evidence of course subject to its objective scrutiny on the criteria enumerated by Article 78 of Qanun-e-Shahadat, 1984.

12. Adverting now to the facts of the case, it is apparent and manifest on record that learned Judge while dismissing petitioner's application abdicated his jurisdiction and proceeded to pass impugned order without application of his judicial mind. While exercising original jurisdiction, learned Judges of the trial Courts are required to comprehend issue and the proposition in its true perspective and should make a conscious effort to concentrate solely on the adjudication of the issues so as to preclude multiplicity of proceedings and to minimize agonies of the parties. In the present case, the learned Judge appears to have proceeded in the matter in a slipshod and mechanical manner in oblivion of law, facts and the guiding principles laid down by the Superior Courts, enumerated herein above. In the light of the authoritative and binding verdicts of the honorable Supreme Court, supra, this Court is left with no other option but to set aside impugned order. Resultantly, by allowing this Civil Revision, case is remanded to the trial Court for fresh decision in accordance with law and in the light of law laid down by this Court as well as the honorable Supreme Court, inter alia, in the cases referred to herein above.

13. Before parting with this order, I cannot resist but to express my concern as to the course of action adopted by the learned Judge in dealing with the issue and passing the impugned order. In this view of the matter, let a copy of this petition be sent to the District Judge concerned for his examination. Civil Revision allowed in terms enumerated ibid. KMZ/U-7/L Revision allowed.