2012 PLP 417 (MLD)

MEHMOOD MAQBOOL BAJWA, J.

Legality of order dated 2-4-2011, recorded by Mrs. Aisha Khalid, the learned Civil Judge 1st class, Lahore has been called in question at the instance of the petitioner-plaintiff, whereby the learned trial Court dismissed the application of the petitioner for permission to produce documentary evidence, reference of which was made in Para-3 of the application which after calling written reply and hearing the adversaries was dismissed by the Trial Court vide order impugned.

2. Heard. The learned counsel for the petitioner maintained that after producing oral evidence, petitioner made an application for permission to produce utility bills, receipts of Excise and Taxation Department and receipts showing payment of loan to the House Building Finance Corporation, which was paid by the petitioner but the learned trial Court on erroneous presumption dismissed the application of the petitioner. Contended that the documents sought to be produced were referred to in Paragraph-6 of the plaint, the contents of which were not questioned at the instance of adversary and as such the opinion formulated by the Trial Court regarding taking to the respondents by surprise is not based on record. Submitted that the documents sought to be produced are public documents, the existence and genuineness of which can be hardly disputed and as such the documents should have been admitted in evidence. Referring to the order impugned and seeking help from the dictum laid down in IQBAL AHMAD KHAN LODHI v. MIRZA MUHAMMAD AJMAL (PLD 1983 Karachi 501), ZAR WALI SHAH v. YOUSAF ALI SHAH, AND OTHERS 1992 SCMR 1778 and MUHAMMAD NAWAZ v. THE ADDITIONAL DISTRICT JUDGE, JHANG and 4 others (1993 MLD 2295), it was argued that the intention of law is not to knock out the party on technical ground and the wisdom and intention behind procedural law is to foster justice. Further submitted that concept of bar against filling gaps through additional evidence is no more available in Pakistan jurisprudence as held by the Hon'ble Supreme Court of Pakistan in the case of Zar Wali Shah, (supra). Controverting arguments, learned counsel for the respondents while making reference to the provisions of Order XIII Rules 1 and 2 of The Code of Civil Procedure, 1908, maintained that it was the duty of the petitioner being plaintiff to place on record all the documents either in his possession or in power and the petitioner failed to append the same with the plaint, who remained in slumber for a considerable period spreading over years and as such in view of the bar contained in Rule 2 of the said Order, petitioner was not entitled to produce the documents. Making reference to the contents of Paragraphs 3 and 4 of the application, it was maintained that the petitioner failed to assign any justification and reason for non-production of the documents sought to be produced by way of the application. Referring to Paragraph 5 of the application making reference to Paragraph 6 of the plaint, it was submitted that there is no reference at all in the plaint regarding the documents and such question of its admission in the corresponding Paragraph of the written statement does not arise at-all. Relying upon the rule of law laid down in Messrs LIYAS MORTINE AND ASSOCIATES (PVT) LTD. v. MUHAMMAD AMIN LAKHANI and others (1999 MLD 3018), it was maintained that since the petitioner failed to assign any "good cause" for non-production of documents, therefore, could not be permitted to produce the documents at belated stage. Submitted that order impugned before this Court cannot be said to be illegal and as such the revision petition is liable to be dismissed.

3. Present petitioner instituted suit for specific performance of executory contract of sale, cancellation of instrument executed by respondents Nos.1 to 4 in favour of respondent No.5 along with mandatory injunction by way of consequential relief on 5-7-2006, which was contested by the adversary. However, it is not disputed that property subject-matter of the suit regarding which specific performance was claimed, was subject to charge. Admittedly, the petitioner produced his oral evidence and when the case was fixed for evidence of the respondents, then an application was made at his instance to produce the documents referred to in Paragraph 3 of the application. It is also not disputed that the said documents were neither produced nor relied upon as envisaged by Order XIII, Rule 1 of the Code of Civil Procedure, 1908. One cannot dispute the consequences of non-production of documents within the time mentioned in Order XIII, Rule 1 of Code of Civil Procedure, 1908. Rule 2 of the said order suggests that no documentary evidence in the possession or power of any party shall be received at any subsequent stage of proceedings unless "good cause" is shown to the satisfaction of the Court for non-production of the same. It is to be noted that expression "good cause" has been used in Order XIII, Rule 2 of the Code of Civil Procedure, 1908 and not the term "sufficient cause" as referred to by the learned trial Court. The expression "good cause" is wider expression than "sufficient cause" and has to be construed liberally. Nevertheless the party can be permitted to produce document if good cause has been shown at the instance of defaulting party at later stage. Though I find myself in agreement with the contention of the learned counsel for the respondents that prima facie there is nothing on record to disclose "good cause" within the meaning of Rule 2 of Order XIII of the Code of Civil Procedure, 1908 but nevertheless question for consideration in the attending circumstances before this Court is whether the learned trial Court rightly dismissed the application keeping in view the nature of documents in the absence of "good cause". It is not disputed that present petitioner wants to produce utility bills, original receipts regarding payment of loan advanced by House Building Finance Corporation and receipts of Excise and Taxation Department. In view of the matter, it cannot be said by any stretch of imagination that the documents sought to be produced at the instance of the petitioner were private documents as argued at the instance of learned counsel for the respondents. Keeping in view the nature of documents, all the documents, undeniably are public documents. Since all the documents sought to be produced at the instance of the petitioner were public documents, therefore, the learned trial Court should have admitted said documents in evidence while allowing the application. I am fortified in my view by law laid down in IQBAL AHMAD and others v. KHURSHID AHMAD and others (1987 SCMR 744) in which an application made at the instance of the petitioner/pre-emptor was not only rejected by the Trial Court but also by the Appellate Court. However, this Court while deciding appeal allowed the pre-emptor to produce copy of Jamanbandi to prove his qualification having a superior right of pre-emption by accepting application under Order XLI, Rule 27 of the Code which order was assailed before the honourable apex Court. While declining leave to appeal, it was held that line of distinction and demarcation has to be made between, private documents and public documents. The public documents, genuineness of which cannot be disputed are to be admitted in evidence, even defaulting party failed to show any "good cause." Perusal of Paragraph 2 of Report under reference clearly suggests that the similar type of arguments were advanced before the apex Court which did not find favour and leave to appeal was declined. The position would have been different one if documents were not public documents in which eventuality existence and genuineness of documents could have been questioned. The documents sought to be produced, being public documents are per se admissible.

4. Rule of law expounded in the Report Messrs LIYAS MORTINE AND ASSOCIATES (PVT.) LTD. v. MUHAMMAD AMIN LAKHANI and others (1999 MLD 3018) cannot advance plea of respondents in view of ratio of IQBAL AHMAD and others v. KHURSHID AHMAD and others (1987 SCMR 744). Similarly, argument advanced at the instance of the respondents that grant of application would be a premium to the petitioner to fill in the gaps through additional evidence cannot advance plea of the respondents in view of the rule of laws laid down in ZAR WALI SHAH v. YOUSAF ALI SHAH and others 1992 SCMR 1778 in which the honourable Supreme Court of Pakistan clearly held at Page 1780 that concept of bar against filling gaps through additional evidence is no more available in Pakistan Jurisprudence and the law. It is settled law that adjudication has to be made on merits and party should not be knocked out on technical ground, as held in the case of MUHAMMAD NAWAZ v. THE ADDITIONAL DISTRICT JUDGE, JHANG and 4 others (1993 MLD 2295). Though I am in agreement with the contention of the learned counsel for the respondents that provisions of procedural law are required to be complied with but nevertheless keeping in view paramount consideration regarding disposal of lis on merits the non-compliance of the said provisions of law is not to be strictly construed in each and every case.

5. Revisional jurisdiction can be exercised in case of Non-assumption, Illegal-assumption or exercise of jurisdiction illegally or with material irregularity.

6. Pursuant to above discussion, the learned trial Court while declining application made by the petitioner failed to exercise its jurisdiction vested in it and as such order impugned suffers from jurisdiction defect calling for interference by this Court.

7. Epitome of the above discussion is that while setting aside order impugned revision petition is hereby accepted subject to payment of Rs.3,000 as cost and the petitioner is permitted to produce the documents sought to be produced, reference of which has been made in the application. S.A.K./M-366/L Revision accepted.