1994 PLP 711 (MLD)

This petition under Article 199 of the Constitution assails the validity of the orders of the Civil Judge I Class, Mandi Baha-ud-Din and the Additional District Judge, Gujrat respectively passed on 18-3-1991 and 1-4-1991 rejecting petitioner's application for leading secondary evidence of the two sale -deeds.

2. On 28-3-1987 the petitioners filed a suit for declaration to the effect that they were owners in possession of land measuring 3 Kanals 6- Marlas situated in village Malikwal, Tehsil Phalia, District Gujrat by virtue of two unregistered sale-deeds and the gift of the same made by Muhammad Inayat respondent No.7 in favour of Said Ali respondent No.16 was illegal and void against the petitioners. By an application dated 17-12-1991 the petitioners sought permission from the trial Court to produce secondary evidence of the two sale-deeds dated 1-9-1944 and 2-9-1944 by which their father namely Karam Elahi Shah purchased the suit land from predecessor-in-interest of the contesting respondents. It was contended by them that the original documents having been lost, secondary evidence was required for their proof. This prayer was not granted by the learned lower forums.

3. It has been argued on behalf of the petitioners that the fact of misplacement of the original documents was duly disclosed at the very outset in their plaint at the time of institution of the suit. According to the petitioners the fate of their cause totally hinges upon these sale-deeds the originals of which are not in their possession and there is no alternative to prove their contents except by secondary evidence which is within the bounds of law under Article 76 of the Qanun-e-Shahadat.

4. A perusal of the plaint shows that the petitioners have relied upon two documents dated 1-9-1944 and 2-9-1944. In the application for production of secondary evidence, again it has been stated that the documents dated 1-9-1944 and 2-9-1944 are required to be proved through secondary evidence. When the trial Court adverted to the photo copies of those documents produced and relied upon by the petitioners, it was found that none of them was relatable to 1-9-1944. As to the other document a glaring discrepancy regarding the particulars of the land and the amount of consideration was noticed. For these reasons the application was dismissed.

5. Factually, these observations are not erroneous. It was incumbent upon the petitioners to specify with full certainty the documents and the evidence for which they wanted to take the benefit of Article 76 of the Qanun e-Shahadat. Secondary evidence is .an exception to the general rule with a purpose to meet genuine hardship. It is the evidence to be adduced in the absence of that better evidence which the law requires to be given first. Obviously, such an evidence shall not be allowed in routine or without complying with the requirements of law in this behalf.

6. No doubt the plaintiff has a right to prove his case by necessary evidence but the defendant also cannot be taken aback or confronted with unforeseen situation. Where a fact has been alleged and certain material in its support has been relied upon, the evidence has to be confined to it. In case of any deviation from this rule, the contesting party may justifiably take exception to it and insist upon restricting the evidence to its declared limits. It is here that the discrepancies relating to the date of execution of document, particulars of the subject-matter and extent of consideration were relevant for deciding the application in question. Besides, the documents in question being unregistered and the consideration, according to the petitioners, being Rs.729 their admissibility will also have to be determined before permission for secondary evidence of their contents is granted, because under no circumstances can, secondary evidence be admitted as a substitute for inadmissible primary) p evidence.

7. Accordingly the learned trial Court was justified to refuse the permission for secondary evidence of the sale-deeds in question. The impugned orders, therefore, do not suffer from any legal infirmity calling for interference in exercise of extraordinary jurisdiction of this Court.

8. In consequence the writ petition is dismissed. H.B.T./S-263/L' Petition dismissed.