2010 PLP 1036 (YLR)

ATTAULLAH KHAN, J.

Through the revision petition in hand, the petitioner has challenged the order dated 12-10-2005 passed by the learned Civil Judge-III, D.I. Khan, whereby he accepted the application of the respondent for producing secondary evidence in respect of receipt allegedly misplaced.

2. The brief facts are that the petitioner filed a suit for specific performance and in alternate for the recovery of Rs.15,10,000 against the respondent on 15-10-1996 in the trial Court.

3. The suit was contested by the respondent by filing written statement.

4. During proceedings of the suit, respondent No.2 Muhammad Younas Khan submitted an application for secondary evidence in respect of receipt allegedly misplaced from him, which was contested by the petitioner. The said 'application was allowed by learned trial Court on 13-6-2004, against which revision petition was filed in the revisional Court. Revision petition was accepted vide order dated 29-5-2004, the impugned order was set aside and the trial Court was directed to record the evidence in respect of existence of the original receipt and its missing.

5. After remand, evidence was recorded and through impugned order dated 12-10-2005, the application was accepted, secondary evidence was allowed and the case was fixed for secondary evidence.

6. The above mentioned decision was challenged in appeal before the District Judge, D.I. Khan, which was returned in original to the petitioner for its presentation to the proper forum because of lack of jurisdiction. So the instant revision petition was filed in this Court.

7. Learned counsel for both the parties heard and record on file perused, in the light of which my discussion is as under.

8. Learned counsel for the petitioner argued that the trial Court has ignored the provision of Article 76 of Qanun-e-Shahadat Order and that the petitioner has failed to prove the existence of receipt.

9. On the other hand, learned counsel for the respondent opposed the contention raised by the petitioner's counsel.

10. On the other hand, counsel for the respondent stand is that the evidence produced by the respondent on the direction of the revisional Court is enough to prove that the original receipt was in existence but was lost. As per section 76 of Qanun-e-Shahadat Order secondary evidence may be given on the existence of contents of a document when the original document is lost.

11. I have gone through the above article. When a document is lost, secondary evidence is permissible. However, it is necessary that the fact of missing is proved first and in case of lost when a document is not proved, secondary evidence would be of no value even if it is produced. So it means that the secondary evidence is permissible if missing of a document is proved. We have to see whether the said fact regarding missing of an original document is proved or not.

12. In support of his claim, the respondent has produced Muhammad Younas and Bashir Hussain. Muhammad Younas is defendant No.2, who has deposed that during renovation of his house the original receipt was misplaced. Another witness Bashir Hussain who is marginal witness of the said receipt has supported the existence of original receipt. Though statements of the above witnesses it is proved that the original receipt existed. So in my opinion provision of Article 76 of the Qanun-e-Shahadat has been complied with. Moreover, it is yet to be proved after recording of secondary evidence that whether the contents of that document are true or not or whether it was executed between the parties. The provision of Article 76 of Qanun-e-Shahadat has been fulfilled which is mere formality and has no adverse effect on the case of the petitioner. The petitioner has ample opportunities to disprove the claim of the respondent by cross examining the witnesses appearing in secondary evidence and also to rebut it by producing his own witnesses.

13. In my opinion no illegality or irregularity has been committed by trial Court in passing the impugned order. There is no force in the revision petition, which is hereby dismissed leaving the parties to bear their own cost. Before parting with the Judgment it is to be noted that the case is pending for the last 13/14 years in the trial Court and needs speedy disposal. Therefore, the trial Court is directed to dispose the case within three months after receipt of record which shall be sent there forthwith. H.B.T./40/P???????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.