P L D 1988 Supreme Court 109 (PLP)

NASIM HASAN SHAH; J.‑‑ This appeal, by leave of this Court, is directed against the judgment of the Lahore High Court, Multan, Bench, passed on 20‑6‑1987 in Civil Revision No. 53 of 1985. The relevant facts are that a suit was filed for specific performance of an agreement for sale of agricultural land by the appellants herein against the respondents (who are husband and wife) alleging that an agreement of sale was executed in their favour by the respondents on 29‑3‑1980 and a sum of Rs.3,75,000 was paid by them on that date while a further sum of Rs.2,00,000 was to be paid before 2‑7‑1980 and the balance amount was to be paid by January, 1981. However, according to the plaintiffs, in the last week of June, 1980, the respondents informed them that they did not want to sell the property to them constraining the plaintiffs to file the suit for specific performance on 4‑9‑1980. The parties went to trial on five issues; the fifth being:‑ "Whether the plaintiffs are entitled to decree for specific performance of contract as prayed for? O.P.P." The plaintiffs /appellants examined ,four witnesses including appellant No. 1 (Zafar lqbal) himself on 20‑1‑1983. In the course of his statement Zafar Iqbal stated that a conversation had taken place between him and the son of the respondents wherein he had stated that his mother (respondent No. 2 herein) was not prepared to complete the sale, which talk had been taped and he wished to produce the audio‑cassette containing the said conversation in evidence. The request for production of the cassette was refused by the trial Court and an application under Order 13, Rule 2 and Order 18, Rule 2, read with section 151, C.P.C. was submitted by the plaintiffs seeking the permission of the Court to produce the cassette of the audio‑tape in evidence. This application was rejected by the learned Senior Civil Judge, Vehari vide order, dated 17‑1‑1985, on the ground that the said cassette had not been relied upon in the list of the reliance filed alongwith the suit. The revision directed against this order before the High Court (Civil Revision No. 286 of 1983) was also rejected vide order dated 22‑11‑1983 wherein it was, inter alia, observed:‑ "It is remarkable that although admittedly the cassette was with the petitioners/ plaintiffs yet no reference was made to it in the plaint. The cassette was not produced before the Court when the suit was instituted. For what has been stated above, it is not a fit case for interference with the impugned order In exercise of the revisional powers of this Court." The appellants then filed a Civil Petition for Special Leave to Appeal in this Court (C.P. No. 5 of 1984) which was dismissed by this Court. In the course of its order this Court referred to para. 4 of the High Court Rules and Order Vol. 1 Chapter 1, Part 'G' which lays down:‑ "

4. The above provisions as regards the production of the documents at the initial stage of a suit are intended to minimise the chances of fabrication of documentary evidence during the course of the suit as well as to give the earliest possible notice to each party of the documentary evidence relied upon by the opposite party. These provisions should, therefore, be strictly observed and if any document is tendered at a later stage, the Court should consider carefully the nature of the document sought to be produced (e.g. whether there is any suspicion about its genuineness or not) and the reasons given for its non‑production at the proper stage, before admitting it. The fact of a document being in possession of a servant or agent of a party on whose behalf it is tendered is not itself a sufficient reason for allowing the document to be produced after the time prescribed by Order XIII, Rule

1. The Court must always record its reasons for admission of the document in such cases, if it decides to admit it (Order XIII, Rule 2)." and observed that the trial Court in refusing the fresh evidence had acted in accordance with para. 4 above cited. It was further observed that the trial Court has the discretion in the matter of admission of evidence and as production of the evidence was sought at a late stage of the proceedings, the exercise of the High Court's discretion in not admitting it at that stage could not be faulted. Hence this Court could not interfere in the exercise of such a discretionary order. The Civil Petition was, accordingly, dismissed by this Court's order, dated 27‑2‑1985. It seems that in the meanwhile the plaintiffs were called upon to produce their rebuttal evidence and on 29‑9‑1984 they submitted an application for framing of an additional issue with a view to highlighting an important question, which, according to them, was not brought out sufficiently in the already framed issues, namely, whether a sum of Rs.2,00,000 required to be tendered by the plaintiffs to the defendants before 2‑7‑1980 was tendered and if so, whether the defendants had refused to accept the same amount? This application was accepted and the trial Court on 13‑10‑1984 framed the following additional issue No. 4‑A:‑ "Whether the plaintiffs have performed their part of contract by tendering a sum of Rs.2,00,000 to the defendants before 2‑7‑1980 which was, however, finally refused by the defendants and are ready to perform the other part of their contract?" Sometimes, thereafter, when the evidence of the plaintiffs on the additional issue afore‑mentioned was recorded on 8‑1‑1985, P.W.5 Naeemullah stated that the facts he was depositing to in his statement were supported by a tape‑record which was in the possession of the plaintiffs and the same could be produced. An objection was raised to the production of the alleged audio‑cassette on the ground that this matter had already been agitated and the request for production of the said cassette in evidence had already been disallowed. The appellants thereupon filed an application under section 164 of the Qanun‑e‑Shahadat Order 1984 for permission to produce the cassette in evidence. This application was rejected by the learned trial Court on 17‑1‑1985 observing, inter alia, as follows:‑ " ........................ the matter in dispute has already been adjudicated upon by my learned predecessor vide his order dated 17‑4‑1983 whereby he rejected the application of the petitioners/ plaintiffs of similar nature. The petitioners/ plaintiffs went into revision but their revision petition also stood dismissed on 22‑11‑1983 by the Hon'ble Lahore High Court, Multan Bench, Multan and thus the said order has attained finality. The petitioners/ plaintiffs have not disclosed this fact in their present application and have tried to get a relief by concealing the material fact from the Court, which, under the law, cannot be allowed to them. This conduct of the petitioners/ plaintiffs is not warranted by law, and, therefore, the same cannot be appreciated as it was their first and foremost duty to disclose the facts relating to the matter in dispute but they failed to do the needful. It is, therefore, held that the petitioners/ plaintiffs have not moved this application with clean hands and, therefore, they are not entitled to the relief prayed for." The application was, accordingly, rejected and the plaintiffs ordered to pay Rs.500 as costs for moving this 'malicious, frivolous and baseless application'. The above order of the learned trial Court dated 17‑1‑1985 was challenged by filing a civil revision before the Lahore High Court, Multan Bench (C.R. No. 53!1985) wherein it was contended that after the additional issue stood framed on 13‑10‑1984 the appellants /plaintiffs were entitled to lead evidence in support of the additional issue and that the cassette in question being a material piece of evidence should have been permitted to be produced in evidence. But the learned Single Judge of the High Court who heard this revision rejected it observing, inter alia, as follows:‑ "All efforts of the petitioners to produce the cassette had failed when their application for the production thereof was rejected by the learned trial Court on 17‑1‑1985. Their revision petition bearing C.R. No. 286/83 was dismissed by the High Court on 22‑11‑1983 and, thereafter their Civil Petition for Special Leave to Appeal No. 5/84 was dismissed by the learned Supreme Court of Pakistan on 27‑2‑1985. The same purpose cannot be attained subsequently by letting an additional issue framed. All pleas including that based on Article 164 of Qanun‑e‑Shahadat, 1984 had to be taken earlier as the law had already come into force." The High Court, therefore, dismissed the revision petition by its order, dated 20‑6‑1987. Leave to appeal against the last‑mentioned order of the High Court was granted by this Court to consider the contention of the appellants that as under section 164 of Qanun‑e‑Shahadat the audio‑cassette was admissible in evidence whether the appellants were not entitled to produce it in support of their case under the additional issue? Section 164 of Qanun‑e‑Shahadat is in the following terms:‑ "

164. Production of evidence that has become available because of modern devices, etc.‑‑ In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques." A perusal of the above provision shows that an audio‑cassette is undoubtedly be admissible in evidence. But the question is whether the audio‑cassette in question could, in all the circumstances of this case, be allowed to be produced in evidence, pursuant to the application submitted on 8‑1‑1985 under Article 164 of the Qanun‑e‑Shahadat Order, 1984 (which came into force on 26‑10‑1984)? I4 'e notice that an effort to get this audio‑casstte produce in evidence was made earlier by the submission of an application on 10‑3‑1983. This application was dismissed by the learned trial Court on 17‑4‑1983, not on the ground that an audio‑cassette was not admissible in evidence but on the ground that as this piece of evidence was not relied upon in the list of reliance filed alongwith the suit it could not be accepted in pursuance of an application submitted three years later. The High Court thereafter dismissed the revision petition directed against the order of the trial Court on 22‑11‑1983 on this and some other grounds. This Court too, ultimately, rejected the petition for leave to appeal directed against the last‑mentioned order of the High Court by adverting to the terms of Rule 4 of the High Court Rules and Orders, Chapter 1, (Part 'G') to wit that where the plaintiff fails to produce a document at the prescribed time and is desirous of producing it subsequently by appeal to the provisions of Order XIII, Rule 2, C.P.C. such a prayer can only be allowed for cogent reason, which did not exist in this case. The provisions of Article 164 of the Qanun‑e‑Shahadat Order 1984 did not furnish the appellants with any fresh ground for re‑agitating the same issue because they only provide that an audio‑cassette is admissible in evidence. But this does not carry then case of the plaintiffs much further because in the earlier round too the production of the audio‑cassette tape was prayed for and this prayer was refused not on the ground that an audio‑cassette tape is not admissible in evidence but was refused on the ground that the, request for its production was being made so late that it was not possible to accede to it at that late stage. So far as the contention that the plaintiffs are entitled to produce the audio‑cassette in support of the additional issue after it was struck on 13‑10‑1983 is concerned, suffice it to say that the aforesaid additional issue itself was unnecessary and appears to have been got .framed for being used as a lever or a device to get the audio‑cassette admitted into evidence. The law, however, on the point is quite clear and laid down as early as 1894, in Sayad Muhammad v. Fatteh Muhammad 22 Indian Appeals p.4 by Lord Halsbury to the effect that the sole object of pleadings is that each side may have an opportunity of bringing forward evidence appropriate to the issues and so long as this result is obtained an issue cannot be objected to if the parties can bring forward the evidence appropriate to it in support of an existing issue merely because it does not raise prominently an aspect of a controversy in the first instance. In this case, issue No. 5 was quite comprehensive and the parties could bring all the evidence in support of issue No.4‑A which was framed later (ostensibly with a view to raising prominently an aspect of the controversy) because the already existing issue No. 5 afforded the parties a full opportunity of bringing forward the evidence which was necessary for the decision of the case. Indeed the evidence on the question, sought to be highlighted by the additional issue, had already been brought by the plaintiffs and it was in the course of evidence being led in this behalf earlier that a request was made fort permission to produce the audio‑cassette on 20‑1‑1983 followed by the application on 10‑3‑1983 whereon all the orders passed in the earlier round, namely, the orders passed in the trial Court on 17‑4‑1983, the High Court on 22‑11‑1983 and this Court on 27‑2‑1985; were passed. We, therefore, agree with the opinion of the learned trial Court that the application submitted by the plaintiff under Article 164 of the Qanun‑e‑Shahadat Order, 1984 on 8‑1‑1985 was 'malicious, frivolous and baseless' and deserved dismissal and was rightly dismissed. The upshot is that this appeal must fail. Since the applications dated 8‑1‑1985 under section 164 of the Qanun‑e‑Shahadat was frivolous, baseless and mala fide and filed merely to prolong the proceedings of the suit and delay its ultimate decision‑‑which was, also manifest from the circumstance that the suit filed by the plaintiffs on 4‑9‑1980 was still pending‑‑The appellants/ plaintiffs are burdened with exemplary costs which are accordingly ' fixed in the sum of Rs.10,

000. The result is that this appeal is dismissed with costs, fixed at Rs.10,

000. M.B.A/Z‑20/S Appeal dismissed.