2014 PLP 773 (CLC)

IBAD-UR-REHMAN LODHI, J.

In a suit for pre-emption. the plaintiff applied to the learned trial Court under the provisions of Article 76 of the Qanun-e-Shahadat Order, 1984, to produce secondary evidence, on the plea that the notices sent to the defendants by meeting the requirement of making 'Talb-i-Ishhad', were not received by the defendants and the sealed envelopes of the said notices were made part of the record of the suit, but at the time of recording of statement of P.W.2, when the said envelopes were ordered to be reopened, it revealed that instead of sticking with gum, it were closed with the help of stapler and on opening of said envelopes, incomplete notices were found inside the envelopes. Some intrigue on the part of the defendants was alleged by the plaintiff in changing of the notices with original ones, and it was requested that photocopies sent by the plaintiff, be allowed to be produced in evidence by way of secondary evidence.

2. The learned trial Court allowed such petition on 28-4-2008, which order was challenged before the learned District Judge in revisional jurisdiction and a learned Additional District Judge, Pakpattan by means of impugned judgment dated 19-11-2009 proceeded to allow the revision petition and resultantly dismissed the application for production of secondary evidence.

3. From the file, it reveals that when the petition seeking production of secondary evidence was moved by alleging some overt act on the part of the defendants, while in league with the administrative staff of the learned trial Court, the matter must be referred to some inquiry in order to probe the allegation, but without such probe, the allegation was accepted as correct, and the incomplete notices, which were found inside the envelopes opened in the Court, were considered as a result of some foulplay on the part of the defendants and resultantly the production of secondary evidence was allowed.

4. The learned revisional court has rightly interpreted the provisions of Article 76 of the Qanun-e-Shahadat Order, 1984, which provides that secondary evidence can only be allowed, if the party claiming production of secondary evidence, has proved on record either the loss of original documents or possession thereof with other party. In any case, loss of original documents is a sine qua non in order to permit the production of secondary evidence.

5. In the present case, the plaintiff has failed to prove the loss of original notices of `Talb-i-Ishhad', allegedly sent to the defendants and without asserting the factual position, the learned trial Court, after believing the one-sided version of the plaintiff, has allowed production of secondary evidence.

6. The learned revisional court has rightly reached to a just conclusion that in view of the provisions of Article 76 of the Qanun-e-Shahadat Order, 1984 the plaintiff has failed to justify the production of additional evidence, and it was illegally allowed by the learned trial Court.

7. The judgment passed by the learned revisional court does not call for any interference, as the same has been passed with lawful authority and no jurisdictional defect has been pointed out in such revisional findings.

8. Finding no force in this petition, the same is dismissed by maintaining the judgment passed by the learned revisional court on 19-11-2009. MWA/M-64/L Petition dismissed.