2007 PLP 1133 (CLC)

MAULVI ANWARUL HAQ, J.

For purposes of this judgment, reference to the pleaded facts would not be necessary. Suffice it to say that a suit filed by the petitioner for recovery of Rs.1,07,20,000 against the respondents is pending before the learned trial Court. On 14-3-2006 an application was filed for seeking leave of Court to prove a notice, dated 13-3-1999 and a receipt of the courier service through whom the notice was sent. It was stated in the application that in the course of evidence, the respondents have denied the receipt of the notice. A reply was filed by the respondents stating that the notice had not been mentioned in the plaint and it was neither appended with the plaint or relied upon. The learned trial Court vide order, dated 29-5-2006 dismissed the said application. An application filed for review of the said order was dismissed on 15-11-2006.

2. Learned counsel for the petitioner contends that the learned trial Court has failed to exercise the jurisdiction vesting in it on a wrong assumption of the legal and factual position. Learned counsel for the respondents supports the impugned order.

3. I have gone through the copies of the relevant records, with the assistance of the learned counsel for the respondents. The application was dismissed on 29-5-2006 by the learned trial Court on the ground that the said notice was not mentioned in the plaint and was not relied upon. When confronted that the copy of the notice was appended with the plaint, the review was dismissed on the ground that a notice under Article 77 of the Qanun-e-Shahadat Order, 1984, was not served and as such permission to lead secondary evidence cannot be granted.

4. I am in agreement with the contention of the learned counsel for the petitioner noted above. A copy of the notice was not only relied upon but was appended with the plaint. There was no need to plead the notice as such since it was not a kind of notice which is a condition precedent under any Statute for filing the suit. Provisions of Order VI, Rule 11, C.P.C. are quite clear on the subject. This Rule, of course, is subject to and is to be read along with rule 6 of Order VI, C.P.C. The notice was not required to be served under any law as a condition precedent to file the suit.

5. So far as the order passed on review is concerned, the same has been passed by the learned trial Court without reading Article 77 of the Qanun-e-Shahadat Order, 1984. If the learned trial Court had read the said Article, it would have found that the very first exception provided to the general rule laid in Article 77 is that when the document to be proved itself is a notice. Both the impugned orders suffer from jurisdictional defects and consequently, fall within the mischief of section 115, C.P.C. The civil revision accordingly is allowed. Both the impugned orders are set aside and the application filed by the petitioner on 14-3-2006 is allowed. No orders as to costs. F.B./A-95/L Petition allowed.