2002 PLP 3355 (YLR)

(b) Civil Procedure Code (V of 1908)‑‑‑- ‑‑‑‑O.XI, R.12--‑Specific Relief Act (I of 1877), S.42‑--Suit for declaration‑‑ Plaintiff's application for production of original sale‑deed‑‑‑Defendant's reply was that sale‑deed had been destroyed and was not in his possession‑‑‑Trial Court directed defendant to produce certified copy of sale‑deed, but on his failure to do so, proceeded to strike off his defence and decreed the suit‑‑‑Validity‑‑‑No provision of C. P. C. or of any other law warranted an order of impugned nature‑‑‑Party could not be called upon to produce a document, which was not in his possession‑‑‑Certified copy of public document could be obtained by any member of the public on payment of usual charges and complying with, requisite procedure‑‑‑Impugned order was wholly without Jurisdiction. Penalty imposed for non‑compliance of such order could not he Justified under any principle of law or equity‑High Court set aside Impugned Judgment/decree, resultantly suit would be deemed to be pending before Trial Court to be decided in accordance with law. Hassan Ahmad Khan Kanwar for Petitioners. Abdul Waheed Chaudhary for Respondent. Date of hearing: 21st March. 2002 For the order I propose to pass in this civil revision, reference to the pleaded facts would not be necessary, Suffice it to say that the respondents filed a suit claiming that registered sale-deed dated 12-3‑1963 and the mutation based thereon are fraudulent and ineffective upon the rights of the respondents, The plea was denied by the petitioners. Issues were framed on 6‑6‑1993 and the case was being adjourned for recording evidence of the petitioners when on 28‑9‑1993 an application was filed under Order XI, rule 12, C. P. C. for an order directing the respondents to produce the original sale deed, The application was replied on 12‑12‑1994 wherein it was stated that the document was destroyed during 1965 war and is not in possession of the respondents. Vide order dated 28‑3‑1995 the learned trial Court proceeded to direct the respondents to produce a certified copy of the sale‑deed on 29‑3‑1995. On this date the respondents were absent. They were proceeded against ex parts and the learned trial Court adjourned the case to 2‑4‑1995 to consider the effect of non‑compliance of the said order dated 28-3-1995. Vide order dined 2‑4-1995 the learned trial Court proceeded to strike oft the defence of the respondents and to decree the suit of the respondents on 4-4‑1995 the petitioners filed an appeal against the said order and decree which was dismissed by a learned Additional District Judge, Lahore on 23‑4‑1995,

2. A bare reading of the impugned proceedings and order and decrees would show that they are wholly without lawful authority Under Order XI rule 12, C.P.C. a party can apply for discovery only regarding the documents which arc in possession or power of the other party and the Court is thereafter to proceed accordingly. In fact the entire Order XI, C.P.C. relating, to discovery, production and inspection proceed on the said basis. There is no provision of C.P.C. and no provision of any other law which warrants an order of the impugned nature. No party can be called upon to produce a document which is not in its possession or, power. Certified copies of public documents can be obtained by any member of the public on payment of usual charges and complying with the requisite procedures. I, therefore, rind that the order dated 28‑3-1995 of the learned trial Court is wholly without jurisdiction. The penalty imposed upon the petitioners for non compliance of the said orders ix, striking off their defence and decretal or the suit against them cannot be justified under any principle of taw or equity. This civil revision accordingly is allowed. The orders, judgments and p decrees of both the learned Courts below are set aside. The result would be that the suit filed by the respondents against the petitioners shall be deemed to be pending in the Court of learned Senior Civil Judge, Lahore where the parties shall appear on 24‑4‑2002. The learned Senior Civil Judge shall commence proceedings at the stage they were before passing of the said order dated 28‑3‑1995 and decide the suit in accordance with law before 30‑11‑2002. No order as to costs.

3. Copy of this order be immediately remitted to the learned Senior Civil Judge, Lahore. S.A.K./M‑1173/L Order accordingly.