2014 PLP 1100 (MLD)

MUHAMMAD TARIQ ABBASI, J.

Through the instant revision petition, the order dated 24-10-2009 passed by the learned Additional District Judge, Chichawatni, District Sahiwal has been called in question, whereby secondary evidence in respect of a pro note, receipt and 'Iqrar Nama' dated 24-8-2004 by Nazir Hussain (present petitioner) in favour of Amjad Hussain (respondent) has been permitted.

2. The facts are that in the suit filed by the petitioner, against the respondent, under Order XXXVII, Rule 2 of the Civil Procedure Code, 1908, on the basis of a pro note dated 24-8-2004, leave to appear and defend the suit was granted to the respondent. Accordingly the respondent filed the written statement, wherein he alleged that the pro note in question was not against consideration, but as a result of arbitration decision (Faisla Salsi), whereby both the parties had executed pro notes, receipts and agreements in favour of each other and handed over to Ch. Afzaal Ahmad, Advocate. It was further contended that the pro note, receipt and agreement, executed by the petitioner (Nazir Hussain), in favour of the respondent (Amjad Hussain) were duly entered in the register of stamp vendor and petition writer at S.Nos. 1320, 1321 and 1322 dated 24-8-2004 and that similarly the above mentioned documents were also entered in the register of Ch. Muhammad Nawaz Advocate Chichawatni at Serial Nos. 3908, 3909 and 3910.

3. After filing of the written statement and framing of the issues, the respondent had moved an application under Order XI, Rule 14 of the Civil Procedure Code, 1908 before the learned Trial Court with a request that Ch. Muhammad Afzaal Tarar Advocate, in possession of whom, the above mentioned documents, executed by the petitioner in his favour were lying, may be directed to produce the same before the Court. The said request was opposed by the petitioner, but the learned Trial Court, vide order dated 13-7-2009, issued notice to the above named Advocate, for production of the above said documents. The Advocate appeared in the Court on 19-9-2009 and stated that the alleged documents were not in his possession. Thereafter the respondent filed an application before the learned Trial Court, whereby he sought permission of proving the above mentioned documents through secondary evidence, which through the impugned order was allowed. Consequently the revision petition in hand.

4. Arguments of both the sides have been heard and the record has been perused.

5. The record shows that in Para-2 of the written statement, the respondent had fully described about execution of the pro note, receipt and agreement by the present petitioner, in his favour. The numbers through which the above mentioned documents were entered with the stamp vender and the petition writer, as well as Ch. Muhammad Nawaz Advocate were fully described. When the Advocate in whose possession, as per the respondent, the documents in question were lying had come before the Court and denied the documents with him, the application for secondary evidence was moved and dealt with in the manner mentioned above.

6. It has been observed that the defence of the respondent was that the pro note on the basis of which the suit had been filed was not against any consideration, but both the parties under a decision made by arbitration had executed the pro notes and receipts in favour of each other. It was for the respondent to strive for proving and establishing his above mentioned alleged defence, through permissible modes. For the said purpose as first step, he had got called Ch. Afzaal Ahmad Advocate, in the possession of whom, as per him, the original documents in question were lying. When the said Advocate denied the possession of the documents, with him, as subsequent resort, he had moved the above mentioned application, seeking therein permission for bringing on the record, photo copies of the above mentioned documents, through secondary evidence and the learned Trial court through the impugned order had permitted the same.

7. Herein below, it would be seen and determined if the above mentioned procedure, adopted by the respondent and the learned Trial Court, was justified being permitted under the law or otherwise.

8. According to the Article 75 of the Qanun-e-Shahadat Order, 1984 (hereinafter will be referred as Order 1984), documents must be proved by primary evidence. Article 76 of the Order 1984 is exception to the above mentioned rule and describes the situations, under which secondary evidence, relating to a document can be given. For sake of convenience, the said Article is reproduced as under:-- "

76. Cases in which secondary evidence relating to document may be given. Secondary evidence may be given of the existence, condition to contents of a document in the following cases: (a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court; or of any person legally bound to produce it; and when, after the notice mentioned in Article 77, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when due to the volume or bulk of the original, copies thereof have been made by means of microfilming or other modern devices; (e) when the original is of such a nature as not to be easily movable; (f) when the original is a public document within the meaning of Article 85; (g) when the original is a document of which a certified copy is permitted by this Order, or by any other law in force in Pakistan, to be given in evidence; (h) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection; (i) when an original documents forming part of a judicial record is not available and only a certified copy thereof is available, certified copy of that certified copy shall also be admissible as a secondary evidence. In cases (a), (c), (d) and (e), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (f) or (g), certified copy of the documents, but no other kind of secondary evidence, is admissible. In case (h), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."

9. In the situation in hand, as stated above, the respondent had described execution of the documents in question and their custody with the above named Advocate, who when as per application and request of the respondent was called by the learned Trial Court had denied the possession of the documents. The above said application and the request of the respondent, in fact was a notice as prescribed by the Article 77 of the Order 1984. If in the said application, another provision had been mentioned, then only due to the said sole reason, the struggle made, for fulfilling the conditions for leading secondary evidence could not be turned down, because the very purpose of the application was to fulfill the pre-requisites for leading the secondary evidence. The situation in hand, fully covers the circumstances narrated in sub-Articles (a) and (c) of the Article 76 highlighted above.

10. It has been objected that firstly non-existence of the original documents should have been established and then the secondary evidence could be allowed. The said objection is answered in the terms that non-existence of the original documents and secondary evidence can be produced simultaneously, but the former has to precede the latter. If during the evidence execution of the documents in question and their afterward loss will not be proved, then the secondary evidence will have no legal value. In this regard, I am fortified by the dictum laid down in case of 'Mst. Khurshid Begum and 6 others v. Chiragh Muhammad' reported in 1995 SCMR 1237.

11. The impugned order, which due to the reasons mentioned above is quite justified being demand of the law and situation has not prejudiced anyone. The proceedings permitted through the impugned order, rather will help the learned Trial Court in reaching at just conclusion, hence there is no reason, cause or justification, for the petitioner to object the said proceedings and the order.

12. For what has been discussed above, the revision petition in hand has no legal value and as such is dismissed. AG/N-10/L Revision dismissed.