P L D 1954 Lahore 608 (PLP)

KAYANI, J.‑The plaintiffs, Sheikh Allahditta and Nur Hussain, sued A. F. Ahmad & Co. for possession of 5 marlas of land in village Atari, pleading that it was part of field No. 1753/628 which belonged to them and that the defendants had built upon it a garage and an enclosure. The encroach ment, according to them, had taken place about two years before the date of institution of the suit. The defendants pleaded that the buildings in question had been constructed about 3 years before the suit and that they did not belong to Khasra No. 1753/628. The main issue in the case was whether the plaintiffs were owners of the site in dispute but there were subsidiary issues including one of limitation. The trial Court and the Senior Civil Judge as Court of Appeal found against the plaintiffs both on the main issue and on the issue relating to limitation, and a second appeal was heard in this Court. Now although one of the grounds of appeal related to limitation, argument before the learned Judge in Chambers appears to have been addressed mainly to the fact that the trial Court had not exercised a proper discretion in refusing to receive in evidence copy of the jamabandi of 1945‑46 which should have proved the ownership of the plaintiffs. Khurshid Zaman, J. who heard the second appeal in this Court, upheld the decision of the Courts below that the document in question should not have been admitted and also held that no legitimate ground exitsed under Order XLI rule 27, C. P. C., for the admission of fresh evidence at the stage of appeal. He further held that the appeal was liable to be dismissed on the groud of limitation also, for there was a concurrent finding of the Courts below that the appellants had failed to prove that the site in dispute fell within field No. 1753/628. While arguing the case before us, the learned counsel for the appellant dwelt, in the first instance, on the original Court's refusal to admit evidence at the stage of trial. The document in question was not produced with the plaint and was not included in the list of reliance which is filed with the plaint. The suit was instituted on the 8th of August 1946 and evidence was closed by the plaintiffs on the 15th of April 1948 and by the defendants on 19th August 1948. The case was then adjourned for orders to 18th October 1948. It was on this date that an application was made for the admission of the jamabandi in evidence. The prayer was rejected or, two grounds, firstly, that the document was not included in the list filed under Order VII rule 18, C. P. C., and secondly, that no satisfactory reason had been given for its non -production before the plaintiffs had closed their case. No such reason has been given before us also but it was argued that the trend of judicial authority is in favour of the view that documents should be admitted in evidence even at a late stage where their authenticity was not in question. Reliance was principally placed on the following cases:‑ Raja Indrajit v. Amar Singh (A I R 1923 P C 128.). In this case, before judgment was delivered by the High Court, the appellant traced after diligent search certain documents which proved his case. Their Lordships observed that under Order XLVII rule 1, C. P. C., a party had a right to apply for a review of judgment to the Court that has decided the case on the grounds stated in that rule where no appeal has been preferred and, since an appeal had been preferred, the defendants had taken the only and proper course viz., to apply to the High Court which was in possession of the case to admit the additional evidence either under the general principles of law or under the specific provisions of Order XLI rule 27 which lays down that the appellate Court may, "for any other substantial cause", allow such evidence or documents to be produced. Their Lordships, observing that rules of procedure are not made for the purpose of hindering justice" and that there is no restriction on the powers of the Board to admit such evidence for the non‑production of which at the initial stage sufficient ground has been made out, admitted the documents in question. It will be noticed that their Lordships relied on Order XLVII rule 5, which enables a review application to be entertained upon the disc overy of new and important matter, and apparently regarded this as a "substantial cause" within the meaning of Order XLI rule

27. It has not been argued before us, and it cannot be argued, that a jamabandi is a thing of the existence of which he plaintiffs could be ignorant and that they were not able to discover it at an earlier stage during the trial. It should be pointed out that the observations in Indrajit's case were not approved by the Privy Council in Parsotim Thakur v. Lal Mohar Thakur (AIR 1931 PC 143.), where the following passage occurs :‑ "Reference has been made in this connexion to certain observations contained in the judgment delivered by Mr. Ameer Ali in Indrajit Pratab Sahi v. Amar Singh (supra). The question in that case was as to the power of the Board to admit additional documents which the High Court had rejected, and this power is not in any way restricted or governed by the provisions of the Code. If any incidental remarks appearing in that judgment have occasioned any doubt as to the meaning of the rules above referred to, or the conditions under which the discretion of the appellate Court is to be exercised, their Lordships desire to emphasize their view that the correct practice in the matter is as they have now defined it in accordance with the plain words of the Code." Dinomoni Chowdharani v. Brojo Mohini Chowdharni (ILR 29 Cal. 187.). In this case a copy of a map was admitted by 'the Subordinate judge at the trial but ultimately rejected by him as the copy was not proved. An interlocutory order was made by the High Court giving the plaintiff liberty to prove the map on the hearing of the appeal and directing the original to be called for from the Collector's Office. Their Lordships of the Privy Council were of the opinion that the High Court were right in allowing the plaintiff to prove this map if she could and in directing the original to be produced from the Collector's Office. This is not, strictly speaking, a case of admitting fresh evidence but of allowing a document which is already on the file to be proved properly. Kumar Gopika Raman v. Atal Singh (A I R 1929 P C 99.). This is the strongest case in favour of the plaintiffs. On 20th August 1918 the plaintiffs, before closing his case, called as his 32nd witness one Gopesh Charan Chowdhury, himself one of the defendants. The witness produced certain documents which the Subordinate Judge did not allow to be filed at that stage. Thereupon the plaintiff presented a petition praying for the admission of these documents supported by an affidavit in which it was stated that the plaintiff's law adviser only saw them for the first time on Sunday, 18th August. Their Lordships of the Privy Council were of the opinion that the Subordinate Judge had apparently acted under rule 2 of Order XIII which requires the parties at the first hearing to produce the documents in their possession or power on which they rely and which forbids the admission in evidence without the leave of the Court of any document which should have been but has not been produced in accord ance with the requirements of the law. "This rule of exclusion, however", observed their Lordships, "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 documents were not in the possession or power of the plaintiff, and the plaintiff and his advisers 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." It will be noticed that their Lordships were in no small measure influenced by the fact that the plaintiff and his advisers did not know of the existence of these documents so as to enable them to inspect them and form an opinion as to whether they would rely on them or not. This cannot be said of a jamabandi and it would be too late in the day to argue‑indeed it has not been argued‑that where land records are available, the plaintiff or his counsel does not necessarily know whether the rights of ownership would be recorded therein. Indeed the very first thing that a legal adviser is expected to do is to obtain a copy of the land record, before even instituting the suit. Quite some time before the suit was instituted the plaintiff had moved the revenue authorities to obtain the measure of the encroachment and field qanungo, who has appeared in evidence, was deputed to execute this task. The suit was in fact based mainly on the evidence of the field ganungo and the patwari. It could not, therefore, be argued that the plaintiff was not aware of the existence of land records. We should be clear as to what exactly the requirements of law are in the matter of admission of documents, and if legal practitioners ignore them, they not only delay the adminis tration of justice but make themselves liable to damages in respect of their clients. Under Order VII rule 14, where a plaintiff relies on a document, whether or not in his possession or power, as evidence in support of his claim, he shall enter such document in a list to be added or annexed to the plaint. I Under rule 18 a document which ought to be entered in the, list and which is not entered shall not, without the leave of the3 Court, be received in evidence at the hearing of the suit. Under Order XIII rule 1 the parties or their pleaders shall produce, at the first hearing of the suit, all the documentary B evidence of every description in their possession or power on; which they intend to rely and which has not already been filed in Court. Under 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 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. In the present case, on the assumption that the: document in question was not in the possession or power of the plaintiffs, a very liberal assumption in a land suit -Order XIII will not apply. It was a document which, at the least, the plaintiffs should have included in their list of reliance. If they did not so include it, under Order VII rule 18 they cannot, without the leave of the Court, produce it "at the hearing of the suit". It is questionable whether after evidence and arguments have been concluded the case can still be regarded as being at the stage of hearing, but even on that assumption the question would be whether the rule means anything when it makes the admission of a document subject to the leave of the Court. It means that where the Court thinks that the plaintiff or his counsel has been unduly negligent, discretion should be exercised against them. A document which is the mainstay of the plaintiffs' case and which would have bee r~ filed with the plaint by any intelligent counsel could not be, allowed to be produced after the case is over. I am firmly o if the opinion that discretion has been exercised in this case properly. In Dasaundhi Khan v. Rabian Bibi (A I R 1935 Lah. 648.), a Division Bench refused to accept evidence in exactly similar circumstances. The plaintiffs who were to establish the ancestral character of certain land had closed their case on the 3rd of November 1952. The defendant had closed her case on the 6th of January 1953. Arguments were heard on 10th March 1933 and judgment was reserved. Five days later the plaintiffs' counsel made an application asking for permission to produce a certified copy of a pedigree‑table. The learned judges observed that it had not been shown that the plaintiffs with the exercise of due diligence could not have obtained a copy of this document at the proper stage. We also agree with the learned judge in Chambers that it has not been proved that the site in dispute belongs to field No. 1753/628. The girdawar upon whose report the plaintiffs relied started measurements from one fixed point in the north east, regarding it as a fixed point because it was on the edge of a municipal road. We do not know how old the municipal road is and, consequently, whether it could be accepted as providing what is called an undisturbed boundary since the previous settlement. On the motion of the judges of this Court the Financial Commissioner has issued detailed instructions for the guidance of revenue officials or field qanungos who are appointed local commissioners in civil suits relating to had shikni. These instructions occur in volume 11 of the Rules and Orders of the High Court, Chapter 1‑M, and they require that where a boundary is in dispute the field qanungo should rely it from the village map prepared at the last settlement. If the square system is not available, he should find three points on different sides of the place in dispute but as near to it as he can, which are shown in the map and which the parties admit to have been undisturbed. He will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. In the present case the field ganungo has not found even a single undisturbed point and, further, it is in evidence that he executed measurements in the absence of the defendant. It was, therefore, impossible for the Courts below to rely on his evidence. After the arguments had been heard and the case was adjourned for orders, an application was made to the Court for the inspection of the spot, not for executing measurements, and the Court, observing that the evidence could be appreciated even without spot inspection, rejected the application. Even assuming that the intention of the application was that the Court should itself made a local inquiry, that was a very late stage for making such a request. Although the question of limitation also had been argued before us, I consider it unnecessary to go into it in view of my decision on these points. The appeal is dismissed with costs. SOOFI, J.‑I agree. A. H. Appeal dismissed.