2007 PLP 549 (CLC)

MUZAFFAR ALI, J.

This revision petition has been filed to assail the order, dated 23-2-2005, passed by the learned Additional District Judge, Ghizer and the order, dated 5-10-2004 passed by the learned Civil Judge 1st Class Punial, whereby both the learned Courts are in agreement with each other on the point that the application under Order XIII, rules 1 and 2, C.P.C. filed by the appellant/defendant merits dismissal. The concise facts of the case are that, the present respondents Nos.1, 2 and 3 pre-empted the sale agreement dated 4-12-2000 arose between respondent No.4 and the petitioner. The petitioner/defendant No.1 objected the maintainability of the suit on the point, that the subject-matter of the suit being within the Municipal area, is exempted from pre-emption. The learned Civil Judge, Punial, fixed the case for arguments on the above point, without framing any issue in this regard (the practice is also had in law). Arguments were heard on 27-6-2002. The learned Civil Judge gave his finding and declared the suit to be maintainable as in the opinion of the Court, the petitioner failed to prove his contention. The petitioner filed an application under Order XIII, rules 1 and 2, C.P.C. on 18-9-2004 for production of some documents, but the same was disallowed by die learned Civil Judge on 5-10-2004. The petitioner/defendant No.1 filed an appeal before the Court of Additional District Judge, Ghizer, against the refusal order of the learned Civil Judge, Punial, which met the same fate, hence, the instant revision. I have heard the learned counsel for the parties and also perused both the impugned orders of the learned lower Courts in the light of the record of the case. The ratio decidendi, in both the impugned orders for disallowing the application under Order XIII, rules 1 and 2, C.P.C. is that:

"The documents under the application, although are public documents and were not in the possession of the petitioner at the time of submission of his written statement, but the same could not be allowed to be produced at this stage for the reason that, the documents are meant to prove the point of maintainability of the suit, while the point of the maintainability has been decided already by the learned Civil Judge vide his order-sheet dated 27-6-2002, and the same has got finality as has not been challenged by appeal or revision." The above observation, at this stage, by both the learned lower Courts, in my opinion is not tenable in the eye of law, for the reasons that:-- (a) Both the learned Courts have failed to differentiate between the object of allowing a document to be produced and object to considering the documents by the Court to rely or not to rely upon the document and mere allowing a document to be produced, does not, at all mean to rely on the same. It is up to the Court to rely on the same or when the stage comes to scrutinize the document with the purpose to give any finding on it. The public documents which were not in possession of the person who wants to produce the same at a belated stage could not be disallowed merely because the documents relate to a point which has been decided by the Court already. That the second point of the observation made by both the learned lower Courts that "the order, dated 27-6-2002" passed by the learned Civil Judge has become final, as has not been challenged in appeal or revision is also unwarranted in law for reasons that: (i) Although the point of maintainability of the suit has been decided by the learned Civil Court prior to framing of issues in the case, but at the time of framing of issues on 9-10-2002, the learned Court has framed the issues Nos.1 and 4 as under:-- Both the above issues yet to be proved. Issue No.1 is to be proved by the plaintiff and Issue No.4 by the defendants and the learned Civil Court is to give its finding on above issues after scrutinizing the evidence relied by the parties. I am worried, whether the lower Courts while dealing the cases do not keep their eyes open and in such a situation as above, how the Courts below have reached to the conclusion that, the production of the documents under the application might be a useless and futile practice. (ii) The point of maintainability of the suit decided by the learned Civil Judge has not become final even it has not been challenged through an appeal or revision, such finding can be agitated before next higher forum after final decision in suit by the trial B Court including the whole case. Moreover, the learned Civil Judge himself may review his interim finding at the time of his final decision, if better and more authentic documentary or oral evidence is produced. (PLJ 2003 SC 825). The nutshell of the above discussion is that, both the lower Courts have not exercised their jurisdiction vested in them and have caused material irregularity in law, as such, both the impugned orders of the lower Courts are set aside and the application under Order XIII, rules 1 and 2 filed by the petitioner is allowed. The case is remitted to the Court of Civil Judge concerned to proceed the suit further after giving a chance to the respondents to meet the effects of the production of the said documents. The trial Court to issue notice to the parties for attending the Court on a fixed day. No order as to cost. F.B./9/Glt. Petition allowed.