P L D 1952 Baghdad﷓ul﷓Jadid 1 (PLP)

ABDUL AZIZ, C. J.‑Abdul Aziz the present petitioner had brought a criminal case under section 452, 392 Pakistan Penal Code against Maulvi Abdullah, Karim Bakhsh and Ghaus Bakhsh his real uncles and sons of one Abdul Ghani. During the pendency of the criminal suit the uncles of Abdul Aziz the present respondents filed a civil suit in the Court of the Subordinate Judge Khanpur against Abdul Aziz on 25th June 1950. The father of Abdul Aziz petitioner had pre‑deceased his father Abdul Ghani, i.e., the grandfather of Abdul Aziz. He had executed a deed of gift on 9th of May 1947 in favour, of Abdul Aziz on the basis of which a mutation of agricultural land was sanctioned in his favour. The civil suet therefore by the uncles of Abdul Aziz was to obtain a declaration to get the gift made by his grandfather in his favour on 9th of May 1947, set aside. While contesting the claim of his uncle Abdul Aziz had mainly relied on the deed of gift dated 9th May 1947. He failed to produce that document at the earliest opportunity before the Court and when it was produced on the day of evidence, i.e., 19th of April 1951 it was rejected. This order of the Subordinate judge has given rise to the present petition of revision. The first question is whether the revision lies. The learned counsel for the respondents had contended that the interlocutory order not falling within the definition of "case decided" could not be revised. There .was controversy between the High Courts on this point but it was settled to my mind by a Full Bench decision of the Lahore High Court A I R 1943 Lah.

65. The decision was subsequently followed by .the majority of the High Courts as appears from the observations in page 1192 of the Code of Civil Procedure by Chitaley V Edition. The observations are to the following effect :‑ "In the Lahore High Court also, before the recent decision of a Full Bench of that High Court in Bibi Gurdevi v. Ch. Muhammad Bakhsh the view adopted was that interlocutory orders could not be revised and there was no 'case decided' in such cases. This was the view taken in a previous Full Bench decision of that High Court. This view has been overruled by the later Full Bench decision in Bibi Gurdevi's case referred to above in which it has been held that the word 'case' is wide enough to include the decision on any substantial question in controversy between the parties affecting their rights even though such order is passed in the course of the trial of the suit." Now there is no denial of the fact that the admission or the rejection of the deed of gift in the present case was a sub stantial question of law as it goes to the root of the case of the defendant petitioner. The plaintiff respondents contested the mutation No. 400 referred to above in favour of the petitioner. His plea was that the mutation was sanctioned in his favour on the basis of the deed of gift which was referred to along with its date in his written statement. I agree with the contention of Mr. Chishti that if that document is not allowed to go on the file the defendant's case Who is the petitioner before this Court stands decided against him as a matter of course. Decision of this point therefore to my ~ mind was a substantial question of law and consequently this decision amounted to a "case decided". The matter is made further clear by the observations of Bhide J. who had written the principle judg ment in the Full Bench Case. They are as below :‑ "The word `case' in section 115 does not always mean the whole suit. It is of a very wide import, and means any state of facts judicially considered. This meaning is wide enough to include a decision on any substantial question in contro versy between the parties affecting their rights even though such order is passed in the course of, the trial of the suit. An interlocutory order deciding a question of this kind as dis tinguished from purely formal and incidental order is a `case decided' within the meaning of section 115, but it will be open to revision only if the other conditions expressly laid down in section 115 are satisfied and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remedied otherwise than by the exercise of the extraordinary jurisdiction of the High Court at that stage." My decision, therefore, is that the revision in the present case lies. The next question is whether the petition should be accepted or rejected. The learned counsel for the respondents on the authority of O. XIII, rr. 1 and 2 had contended that the document not having been produced at the earliest opportunity should have been rejected, unless good cause for its non‑pro duction at the proper stage was shown. It means, therefore, that r. 1 does not exclude the discretion of the Court to receive documentary evidence at the subsequent stage of the proceedings if a sufficient cause is shown for its non‑produc tion. In determining this question it is to be seen whether the document is suspicious and is a fraud on the opposite party. In the present case, the present petitioner who was a defendant in the civil suit had given the factum of the execution of a deed of gift in his favour by his grand‑father, together with the dates of the execution of the document. It was urged' before me by the learned counsel for the petitioner that deed of gift was signed by the plaintiffs, the present respondents. He criticised the procedure of the Court below that never the parties were directed to produce their documents at the earliest opportunity and it was on account of that fact that this omis sion generally rakes place. In 110 I C 16 it was ruled that "Where either under O. XIII, r. 1, Civil Procedure Code or r. 64 of the Madras Civil Rules of Practice, no orders have been passed by the trial Court fixing any date for the production of documents and there is no direction for the parties to produce their documents or to file a list of them, it is not competent to, the Court to refuse to receive docu ments tendered by the party in the course of the trial on the ground that they had not been produced at an earlier stage especially where such documents are certified copies of public documents." It can be said with fill confidence that the Subordinate Court do not comply strictly with these provisions of the Civil Procedure Code and it consequently gives rise to mistakes on the part of the litigant public to produce the documents at the proper stage. In this case to my mind the failure on the part of the Court to pass proper order under O. XIII, r. 1 appears to me a "sufficient cause" contemplated by. O. XIII, r

2. In 47 I C 513 it was held that :‑‑ "Documentary evidence which has not been produced by the first hearing of a suit in accordance with O. XIII, r. 1 of the Code of Civil Procedure, may be admitted at any subse quent stage at the discretion of the Court." In 111 I C 472 it was ruled that :‑ "The Court may in its discretion admit documents which are not produced at the first hearing, if it is satisfied that they are genuine. O. XIII. r 2, Civil Procedure Code was enacted only to prevent fraud by the late production of suspicious document." My view, therefore, is that were the existence of this document to be proclaimed at the earliest opportunity there could be no reason for an objection to its reception even at a late stage. O. XI, r. 2 no doubt makes satisfactory explanation for non‑production at the first hearing a condition precedent for the reception of the document produced out of time. But the rule must be liberally construed so as to advance the cause of justice. In this case I have already stated that the present petitioner had produced that document in the criminal case; that he mentioned the existence of that document in his written statement in the civil suit ; that the mutation was entered in his favour on the basis of that document, consequently it was an essential document for the purposes of the defendant petitioner and for the decision of the suit. To exclude such a document to my mind would tantamount to grave injustice. The Courts generally do not perform their duty in this State under O. XIII, r. 1 consequently the order should have been in favour of the petitioner on payment of some costs. Rejection of the document was not the just order in this case. Revision is, therefore, accepted and the order of the Court below is set aside with the direction that he should accept the document subject to Rs. 30 as cost to the respon dents. The parties in the revision shall be left to bear their own costs. Abdul Aziz the petitioner and Abdullah the respondent are present. The parties are directed to appear in the Court on 8th November, 1951. K. M. A. Revision accepted.