P L D 1984 Lahore 287 (PLP)

The trial Court after appreciating the oral and documentary evidence, decided both the issues in favour of the plaintiffs and decreed the suits on 18‑5‑1972. On appeals, the First Appellate Court, after re‑evaluating the evidence reversed findings of the trial Court on issue No. 1, on the ground that oral evidence was not reliable and Pedigree table from India (Exh. P. 3) was not proved in accordance with the provisions of subsection (6) of section 78 of the Evidence Act, 1872 (hereinafter called the Act). In conse quence, findings on issue No. 2 were also‑ reversed. The appeals were accepted and the judgments and decrees of the lower Court were set aside by dismissing both the suits.

4. Learned counsel for the appellants contended that Exh. P. 3 was admitted into evidence in the trial Court without any objection as to the mode of its proof. In the circumstances, the learned counsel relied on Gopal Diu v. Sri Thakurji (AIR1943PC83) to contend that an objection as to the mode of proof of a document could not have been raised for the first time at the stage of appeal before the lower appellate Court. As such, it is submitted that the learned District Judge, has acted illegally in excluding an important piece of evidence from consideration.

5. Learned counsel for the respondents relied upon the majority judg ment in Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub (P L D 1973 S C 160), to contend that a document brought on record and exhibited cannot be treated as evidence unless proved in accordance with the mandatory provisions of the Act.

6. In Khan hluhammad Yusuf Khan Khattak's case, the main subject of controversy between the parties was with regard to a document, Form `E', which was allegedly fabricated and surreptitiously smuggled into record of the office of the Registrar of Trade Unions and later exhibited during evidence before the Election Tribunal at the instance of a party without any objection by the opposite‑party or his counsel. A question arose whether a document so exhibited has the effect of dispensing with the necessity of its, formal proof. The majority view was that even if such documents are brought on record and exhibited without objection, they remain on the record as "exhibits" yet cannot be treated as evidence of the original having been signed and written by the persons, who purported to have written or signed unless the writing or signatures of those persons are proved in terms of mandatory provisions of section 67 of the Act. The precedent case relates to question of admissibility or otherwise of a document and not to its mode of proof simpliciter. It is well‑settled that admissibility of a document is altogether different from its evidentiary value. It is always for the Court to see that in circumstances of a case what weight can be attached to a particular document but that would have nothing to do with its recervability in evidence. Refer Sikandar Hayat v. Ghulam Muhammad Shahbazi (1983 C L C 233). Here the grievance is not that Exh. P. 3 is itself inadmissible, but that its mode of proof was not in conformity with the provisions of subsection (6) of section 78 of the Act, in that, it merely bore seal of the High Commissioner of Pakistan in India but was not duly certified by the officer having the legal custody of the original. Such a question ought to have been raised at the time of receipt of the document, so as to afford an opportunity to the plaintiffs to remedy the defect and satisfy the legal requirement. The respondents having failed to do so cannot be permitted to raise this question for the first time at the appellate stage. This view finds support from Fauja Singh v. Allah Ditta (A I R 1931 Lah. 722), wherein it was held :‑ "It is well‑established that where a fact has been erroneously allowed to be proved in a manner different from which the law requires, and no objection is taken in the‑Court of first instance, such objection cannot be taken later in appeal. This view is based on the principle that if objection is taken at the proper time to the reception of certain evidence (not inadmissible in itself) owing to such evidence not being produced in the form prescribed by law, an opportunity can be afforded to the party producing such evidence to remedy the defect and satisfy the requirements of the law." (i) In Fauja Singh's case, reference was also made to Robinson & Co. v. Davies & Co. ((1875) 5 Q B D 26), wherein it was observed :‑ "Where under a commission to take evidence abroad in an action, copies of certain documents and answers of witnesses with regard to the contents of such documents were received by the Commissioners, in evidence on behalf of the plaintiff, without objection on the part of the defendant who joined in the commission and it was held that the secondary evidence of the documents having been taken under the commission without objection on the part of the defendants was receivable before an arbitrator to whom the action was referred and that it was too late then to take objection on the ground that the original documents were not produced." (ii) An identical view was expressed by the Privy Council in Gopal Das v. Sri Thakurji. The relevant portion reads thus: ‑ "The endorsement "admitted against the plaintiffs" is in the form generally employed by the trial Judge under Order XIII, rule 4 for documents tendered by the defendants just as the plaintiff's' documents are marked "admitted against the defendants." The endorsement means that the document is admitted in evidence as proved. Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial." (iii) The view expressed in the aforementioned cases was also followed in Shah Bano begum v. Iftikhar Muhammad Khan (P L D 1956 (W. P.) Kar. 363;), wherein it was observed that objection as to mode of proof of a document must be taken at the time of reception of the document. (Iv) The same view was taken in Abdullah v. Abdul Karim (P L D 1968 S C 140), and observations of the judicial committee of the Privy Council in Gopal Das's ease were approved. The relevant portion reads thus:‑ "The Code of Civil Procedure provides for the admission of documents and it is now well‑settled that if objection to the formal proof of a document has not been taken at the earliest point of time it cannot be taken subsequently and certainly not in appeal." (v) This view was re‑affirmed in Malik Din v. Muhammad Aslam (P L D 1969 S C 136), wherein it was observed :‑ "It will be sufficient to state that the objection regarding the defect, if any. in the method of proof of the document, cannot be raised at this stage. For, the document was admitted into evidence, without any objection, in the trial Court. It is now well‑settled that an objection, as to the formality of proof, must be taken at the earliest and if it has not been taken then, it cannot be allowed to be taken at the appellate stage." (vi) In Sheikhupura Central Co‑operative Bank Ltd. v. Ch. Tawakkal Ullah (P L D 1977 Lah. 763), it was observed: ‑ "The next objection of the learned counsel for the plaintiffs was that the various documents produced by the defendant‑Bank had not been properly proved and, therefore, certified copies of these documents could not be relied upon. The plea has no merit. It was laid down in Gopal Das and others v. Sri Thakurjt and others A I R 1943 P C 83, Abdullah and 3 others v. Abdul Karim and others P L D 1968 S C 140 and Malik Din and another v. Muhammad Aslam P L D 1969 S C 136 that an objection as to mode of proving a document should be taken at the time it is tendered, exhibited and placed on record. If no objection at that time is taken, then such an objection cannot be taken afterwards." (vii) In Government of Pakistan v. Maulvi Ahmad Saeed (1983CLC414), the Division Bench of this Court held that under Order XIII, rules 1 and 4, Code of Civil Procedure, read with section 64 of the Act, documents once admitted and exhibited without any objection as to the formal proof at the earlier stage are admissible in evidence and no exception can be allowed to be taken at the appellate stage.

7. Respectfully following the ratio laid down in the aforementioned cases, 1 am inclined to hold that objection as to the mode of proof of Exh. P. 3 not having been taken before the trial Court, must be deemed to have been waived. The learned District Judge was wrong in excluding it from consideration on the ground it had not been formally proved in accordance with the provisions of subsection (6) of section 78 of the Act.

8. For the foregoing reasons, the impugned judgments and decrees of the learned District Judge, dated 18‑9‑1972, are set aside and the appeals are remanded to him for disposal afresh after re‑evaluating the entire evidence in accordance with law. To this extent the appeals are accepted but there shall be no order as to costs. The parties are litigating for over a decade. The learned District Judge is, therefore, directed to finally decide these appeals within one month. The parties are directed to appear before him on 3rd March, 1984. M. Z. M. Appeal accepted.