1994 PLP 1085 (CLC)

Manzoor Hussain for Petitioner. Raja .Muhammad Siddique Khan for Respondents. The petition is moved against the order of the learned Additional Sub Judge, Mirpur, passed on September 13, 1993, whereby defendant‑petitioner was declined to tender duly attested copies of daily diary of the Patwari relating to year 1964 and 1996‑97‑Bk, in support of respective claim, in hi defence.

2. Abdul Rashid instituted a suit for declaration wherein the correctness and validity of entries relating to the suit land measuring 3 Kanals 14 Marlas comprising Survey No. 64, made in the Jamabandi for the year 1979‑80, way challenged. It was averred that an entry the Jamabandi for the year 1979‑80, in respect of Survey No. 64, was incorrect fake and ineffective on the title and interest of the plaintiff, as such liable to correction. It was claimed that can account of contiguity of the suit land with the boundaries of the canal, it became uncultivable w.e.f. 1955, 6‑7 years earlier Due to that position, Nek Alam, defendant No. 1, by collaboration with the Revenue Officers, secured the disputed entries in his favour and his brother Muhammad Alam who was survived by defendants Nos. 1, 2 to

6. The suit was instituted on June 27, 1989. The defendants contested the claim of the plaintiff and repudiated all the averments. On conclusion of evidence of the plaintiff defendants led their evidence. Among others, they produced Oamar Hussar Shah, Patwari and Inayatullah Patwari. Through these witnesses, copies o record‑of‑rights were proved.

3. On August 31, 1992, an application was moved for issuance of copies of `Roznamcha Waqiati' (daily diary) of the Patwari. On August 6, 1992, an application was moved before the learned Additional Sub‑Judge for permission to submit the copies of daily diaries for the year 1938‑39 and 1964, as evidence in support of respective defence of the defendants. The application was opposed. The matter was decided on August 31, 1992. The application of the defendant‑petitioner was turned down. The matter was challenged in revision before this Court. The learned Judge in the High Court, maintained the order of the trial Court. In the order of the High Court, an aspect relating to recalling of Patwari‑witness was attended in the light of relevant provisions o law. However, it was observed that the copies of record‑of‑rights, sought to be proved in defence, could be proved by various modes available in due course law.

4. On the second round, when the defendant appeared as witness an tendered copies of daily diaries in question, an objection was raised by the learned counsel for the opposite‑party. The learned Sub‑Judge accepted the objection and declined to receive the documents in evidence. This order ha been challenged in the present petition.

5. It is argued‑ by ‑ the learned counsel for the petitioner that the document the authenticity of which is indisputed, can be produced in evidence at any stage. Therefore, refusal of the trial Court to accept the documents in evidence, was a patent mistake and failure to appreciate the rules of procedure. Reference was made to AIR 1928 Patna 537, AIR 1929 Patna 324,.AIR 1981 H.P. 18, AIR 1936 Patna 631 and AIR 1936 Patna

634. Raja Muhammad Siddique Khan; the learned counsel for the opposite‑party controverted the aforesaid points and supported the impugned order. It was emphasised that the discretionary power vested in the Court was to be exercised in view of the facts of each case. In absence of explanation as to why the documents were not produced at the earliest stage, the trial Court rightly refused to accept the documents in evidence at the late stage.

6. Under the rules of procedure, it is enjoined upon the parties to produce documentary evidence of every description in possession or their power, desired to be relied in support of respective stands of the parties, However, when the parties ignored to act in compliance with the aforesaid rules, the Court was conferred power to receive documents of either party at late stage provided it was satisfied that the party failed to produce the documents in time or at earlier stage, on account of some good cause to the satisfaction of the Court. Rule 2 of Order 13, C.P.C., empowers the Court to receive such documents in evidence at late stage provided it was satisfied that the explanation furnished to it was reasonable and in good faith. In such situation, it was permissible in the interest of justice to receive the documents even at subsequent stage. This principle of law finds support from the authorities referred on behalf of the learned counsel for the parties.

7. Another implied condition relating to acceptance of documents at late stage is that it must be ensured that the document sought to be produced must be free from forgery and otherwise its fictitious character. In other words; it is enjoined upon the Court to ensure the authenticity of documents sought to be produced in evidence. Therefore, besides the presence of good cause or sufficient explanation, the authenticity of the documents sought to be produced in evidence has also to be ensured.

8. In the present case, it appears that the documents sought to be produced in evidence, were not produced alongwith the pleadings of the defendants nor the same were placed on the file of the Court at the time of framing of issues. The Patwari‑witnesses were produced in order to get the other documents proved through them, in support of defence. These documents were not produced even at that stage. An application for permission to produce the documents on the file of this Court, contains no explanation whatsoever, as to why the documents were not produced at the earlier stage. Apparently, the defendant‑petitioner failed to furnish a good cause or sufficient reason to fulfil the conditions of Rule 2, Order 13, C.P.C.. An‑application is placed on the file which reflects that the defendant‑petitioner applied for issuance of the copies of daily diaries of the Patwari. On securing copies, an application was moved before the trial Court for permission to produce the documents in evidence. In that application, it was prayed that the Patwari who prepared the copies, may be summoned to get the copies proved through him. The application vitas rejected and in revision the learned Judge of the High Court disposed of the petition primarily by attending the aspect of recalling of Patwari‑witness for his evidence.

9. On going through the judgment of the High Court, it is noticed that the learned Judge in the High Court did not elucidate that the order to receive the document was warranted. He disposed of the proposition by making observation that the document could be tendered in evidence in one of the modes provided by law. It is, therefore, evident that the learned Judge was of the view that a true attested copy of a public document could be proved in evidence by its tendering by the party itself. On second round, when the document was sought to be tendered, the trial Court refused to receive it under the impression that the previous order passed by the Court was fully maintained in the High Court.

10. On going through the record and history of the case, it is noticed that an omission on the part of the petitioner has occurred on account of improper legal advice and bad drafting of the application for permission to produce the documents in evidence. The counsel who drafted the application, was unmindful of the fact that permission in such cases could only be granted on furnishing good cause or sufficient ground in support of delay in tendering the documents in evidence. An omission or negligence of the counsel cannot be a good cause to penalise the party or allow defeat of ends of justice. At the best, such an omission can be rectified by imposing costs on the party. The document in question has been examined by this Court, by summoning the original record. Muhammad Rafique, Office Qanungo, Tehsil Mirpur, has produced the original register of `Roznamcha‑Waqiati'. The entries have been compared by him with the assistance of the learned counsel for the parties. The copies are duly attested and at the same time, as a rule of caution, the correctness of the entries has been reverified and affirmed. No sign of forgery or otherwise fictitious character of the documents has been found. It is found that the documents sought to be produced in evidence are genuine. These have come from proper custody, as such, their authenticity is found beyond doubt.

11. In view of the aforesaid reasons, it is deemed expedient to allow the production of documents in evidence, to meet the ends of justice. However, this permission is granted subject to payment of Rs. 1,000, as costs, to be paid by the petitioner to the plaintiff‑respondents. The petition is, therefore, accepted and the impugned order is set aside. The petition is disposed of accordingly. The parties shall appear before the trial Court for their evidence, on February 15, 1994. AA/38/H.C.A Revision accepted