2009 PLP 2265 (YLR)

JAMSHED RAHMAT ULLAH, J.

The petitioner through the instant Constitutional petition has called in question the order dated 8-3-2006 passed by learned Additional District Judge, D.G. Khan.

2. Precisely, the facts of the case are that allegedly an agreement to sell was executed between the petitioners and respondent No.2 with regard to the property situated in Khata No.42/33, Mauza Mutfaq Chahan Tehsil D.G. Khan for an amount of Rs.3,10,

000. Out of the said amount, an amount of Rs.60,000 was paid at the time of execution of the agreement to sell and the remaining amount was to be paid on 15th of June, 2004. For the specific performance of the said agreement to sell, respondent No.2 filed a suit before the learned Senior Civil Judge, D.G. Khan. In that suit, the present petitioners filed their written statement. Thereafter, the issues were framed and evidence of present respondent No.2 was recorded. Then the present petitioners moved an application on 9-12-2004, for bringing on record the documentary evidence i.e. copy of Passport, to show that at the time of execution of alleged agreement to sell, he was not in Pakistan, therefore, his signatures have been forged. The learned trial Court vide his order dated 26-1-2005 allowed the application subject to payment of cost of Rs.200. Against the said order, revision petition was filed by respon dent No.2, which was fixed before learned Additional District Judge, D.G. Khan, who accepted the revision petition and set aside the order of the learned trial Court.

3. Learned counsel' for the petitioners contends that during evidence of the present petitioners, they requested to exhibit the passport of petitioner No.1 bearing No. AB 143949, but learned counsel for present respondent No.2 raised objection and argued that it cannot be exhibited being not part of the file and not relied upon. Further contends that at the time of framing of issues, petitioner No.1 was not in contact with his counsel, therefore, such passport could not be entered in the list of reliance. Further contends that the revision petition before the learned Additional District Judge was not maintainable. In this context he has placed reliance on 1969 SCMR

965. Further contends that it is settled proposition of law that the technicalities should not be allowed to hinder the trial. Further contends that the petitioner intends to produce the passport to prove that when the agreement to sell was executed, he was not in Pakistan.

4. On the other hand, the learned counsel for respondent No.2 contends that the present petitioners had not mentioned in the written statement that at the time of execution of alleged agreement to sell, petitioner No.1 was not in Pakistan, nor he has based his reliance on the passport, in the list of reliance, therefore, the learned trial Court was not legally justified to allow petition No.1 to exhibit and. bring on record passport. Further contends that the petitioners could not be allowed to bring on record the alleged passport without seeking amendment in the written statement, therefore, the impugned order is not sustainable in the eye of law. Further contends that it is the basic requirement of law that material facts forming defence or counter title should be specifically mentioned in the written statement. Further contends that until and unless, this fact was specifically alleged or a plea was raised in the pleadings, no evidence could be led without amendment in the pleadings. Further contends that the impugned order is an interim order and against the interim order, writ petition is not maintainable. He relies on the case of 2002 CLC

254. Further contends that this issue was brought on the record by the present petitioner when the evidence of respondent No.2 was concluded.

5. I have heard the arguments of the learned counsel for the parties and perused the record.

6. The main contention between the parties is an agreement to sell purported to be executed between the parties on 16-5-1994. The present petitioners specifically denied the execution of this agreement to sell, as according to them no transaction took place between the parties pertaining to the subject land. It is a matter of record that the present petitioners failed to enter passport in the list of reliance, giving a justification that at the time of framing of the issues, the present petitioners, were not in contact with their counsel, therefore, the passport was not entered in the list of reliance. Without commenting as to whether said justification carries any sanctity or not, one thing is clear that by bringing on record the passport and the entries in the said passport, the present petitioners intend to demonstrate, that present petitioner No.1 is not signatory to the agreement to sell in question and his signatures have been forged. The objection of the counsel for respondent No.2, that the present petitioners have nowhere mentioned that petitioner No.1 was out of Pakistan, therefore, he cannot being on record the passport at a later stage. I am not inclined to give much weight to the said argument, as the question under consideration in the case is whether petitioner No.1 has signed the agreement to sell or not. Whether petitioner No.1 was in Pakistan or abroad is not the question to be determined but in fact if the passport is brought on record, it would be easy for the petitioner to prove that he is not a signatory to the agreement to sell, apart from getting the signatures verified from the Finger Print Expert. Thus even if, present petitioners have not specifically mentioned in their written statement that he was out of Pakistan does not make much difference. Without commenting on the objection whether revision before learned Additional District Judge was maintainable or not or whether the present writ petition is maintainable or not one thing is clear that, exercise of the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is discretionary with this Court, but according to the principle laid down by the Supreme Court, the discretionary powers must be exercised in good faith, fairly, justly and reasonably, having regard to all the relevant circumstances. While examining the present case and in the light of the principles laid down by the Supreme Court, I am of the view that the instant petition should have been entertained, instead of disposing it of on technical grounds.

7. The object of Order XIII rules, 1 and 2 is to prevent fraud and not to penalize parties for non-production of documents in time. Accordingly, where the genuineness of the document is beyond doubt, it ought not to be shut out of evidence, if produced at a late stage. In fact it is the nature of documents, which is to be considered, i.e. private documents, manipulation and tempering cannot be ruled out, therefore, mostly private documents are not enter tained at a later stage. However, public documents of unimpeachable authenticity may be entertained even at a later stage as their authenticity can hardly be challenged and the chances of their manipulation and tampering are remote. In the instant case, passport is a public document.

8. For the foregoing reasons, this writ petition is accepted and the order dated 18-3-2006 passed by learned Additional District Judge, D.G. Khan is set aside. Resultantly, the order dated 26-1-2005 passed by the learned trial Court is restored. S.A.K./I-77/L Petition accepted.