1990 PLP 1368 (MLD)

(b) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O.VIII, R.2 & S.115‑‑‑Trial Court itself directed parties to file documents in support of their case which was complied with by defendant and documents were filed‑‑‑No objection having been taken by plaintiff at that time, order attained finality and it could not be subsequently set at naught by Trial Court‑‑‑No objection was raised even when document was sent for comparison of thumb -impression so there was no reason for issuing a laconic order without considering various aspects of matter‑‑‑Defence of petitioners was based on document in question hence they had been prejudiced by its exclusion from consideration‑‑ Judgment of Courts below was set aside and case was remanded to Trial Court for its decision afresh after allowing petitioners an opportunity to produce document in question. Muhammad Nazir Janjua for Petitioners. A.R. Shaukat for Respondent. Date of hearing: 3rd February, 1990: This petition under section 115 of the C. P. C. arises out of a suit for possession filed by Sarwar Khan respondent against the petitioners which was tried alongwith another suit for permanent injunction also filed by the respondent against the petitioners. Both the suits were consolidated by the trial Court on 4th January, 1979 when it was directed that parties may file their documents before 10th January, 1979 which was the date fixed for framing the issues. In pursuance to this order the petitioner produced certain documents including an agreement, dated 15th October, 1973 whereby the respondent had purportedly accepted the title of the petitioner to the suit property. On his application, the trial Court on 6th February, 1979 sent this agreement to the Finger Print Bureau for comparison of the thumb‑impression of the respondent with his admitted thumb-impressions. Thereafter, the evidence of the respondent /plaintiff was recorded by the trial Court and the petitioner was called upon to produce his evidence. The petitioner examined DW.1 Allah Ditta who stated that he was the scribe of the agreement which was exhibited as D.1. After the document had been exhibited, an objection was raised by the learned counsel for the respondent at the time of cross‑examination, that as the petitioners had not filed any list of reliance they were not entitled to produce the document in evidence. This objection prevailed with the trial Court which proceeded to. de‑exhibit the document and excluded it from evidence. The petitioners did not produce any other evidence which was closed under Order 17, rule 3, C.P.C. and the suit tiled by the respondent was decreed on 12‑6‑1970. Aggrieved by this decision, an appeal was filed by the petitioners which was dismissed by the learned Additional District Judge on 14th April, 1980. Hence this revision petition.

2. The main contention raised by the learned counsel for the petitioners is that there was no, justification for the trial Court to have excluded from consideration the agreement, dated 15th October, 1973 on the ground that in the absence of list of reliance, the said document could not be produced in evidence. There appears to be considerable force in this contention of the learned counsel. It stands admitted on the record that no list of reliance was filed by the petitioners alongwith their written statement. This being the position according to Rule 2 of Order 8 (was added by the Lahore High Court), if no list of reliance is annexed or presented, the defendant shall be allowed a further period of ten (10) days to file this list of documents from the date of first hearing of the suit. The first hearing has been interpreted to mean the date on which the pleadings are considered and issues are framed by the Court. (See Srinagar‑Rawalpindi Transport Company v. Muhammad Azeem Khan and others P L D 1965 Azad J&K 46, Bahrain Pamaji and others v. Uttam Chand Motilal Agarwal A I R 1939 Nag: 110 and Chindambaram Chettiar v. Parvathi Achi A I R 1926, Mad. 347). In this view of the matter the petitioners could file this document within ten days from the 10th of January, 1979 when the issues were framed.

3. Another aspect which needs to be noticed is that on 4th January, 1979 the trial Court itself has directed the parties to file the documents in support of their case in Court before 10th January, 1979. This order was duly complied with and the documents were filed. No objection was taken at that time by the respondent‑plaintiff. This order had, as such, attained finality and could not be subsequently set at naught by the 'trial Court itself as it did by excluding the document from consideration. It is also to be noticed that the document was sent for comparison of the thumb‑impression present thereon to the Finger Print Bureau on 6th February, 1979 and even on that date there was no objection that it could not be produced in evidence. During the statement of D.W.1 the document 1 was exhibited as D.1 and there appears to be no reason as to why the trial Court should have subsequently proceeded, by a laconic order without considering various aspects of the matter, to exclude this document. Since the defence of the petitioners was based upon this document their case appears to have been prejudiced by the exclusion thereof from consideration. In these circumstances the judgments of the two Courts below cannot be sustained. As a result of the above, this petition is accepted, the judgments and decrees of both, the Courts below are set aside and the suit filed by the respondent is remanded to the trial Court for its decision afresh after allowing the petitioners an opportunity to produce agreement dated 15th October, 1973 in evidence: The, parties arc left to bear their own costs. M.R.A./G‑315/L Petition accepted.