Production of evidence

2022 CLD 425 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 118Payment of liquidated damages on late settlement of claimsProduction of evidenceScope

Claimant and the insurer may disagree on a myriad of issues relating to payment on a policy issued by the insurer such as the time when the payment becomes due, the precise payment to be made to the claimant and whether if at all the claim is due to the claimant or not

All of these issues may give rise to triable issues for which evidence and proof is required

Sum of liquidated damages cannot follow as a matter of course as soon as the payment on a policy becomes due in the estimation of the claimant.

2022 CLD 425 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 118Payment of liquidated damages on late settlement of claimsProduction of evidenceScope

Provisions of S. 118 of Insurance Ordinance, 2000 reveal that entitlement of claimant is assured unless insurer proves that such failure was due to circumstances beyond his control

Said argument is further bolstered by the condition "if he fails to make the payment within a period of ninety days from the day on which the payment became due…"

Payment becomes due only upon its determination by a competent forum provided by law and in particular, if a dispute arises over the claim, that is, only when the claim crystallizes and a person becomes entitled to it

In a nub, the issue regarding grant or refusal of liquidated damages is a matter of evidence and no decree can be passed unless a claim is established on a balance of probabilities.

2022 CLD 425 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 118Payment of liquidated damages on late settlement of claimsProduction of evidenceScopeSection 118 of Insurance Ordinance, 2000 makes the payment of liquidated damages an implied term of every contractUnderlying precondition for payment of liquidated damages is to establish that breach of a promise has occurred

Such would require evidence to be taken down.

2021 MLD 2088 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.7Age, determination ofProduction of evidenceScope

Complainant assailed the validity of order passed by Sessions Judge whereby he had declared the accused persons to be Juvenile in terms of S.7 of the Juvenile Justice System Ordinance, 2000

Determination of child/adult required recording of evidence in view of Qanun-e-Shahadat, 1984

Record available on file reflected that the Trial Court in the process of inquiry had summoned relevant record from the concerned school, Union Council/Municipal Committee and NADRA (National Database and Registration Authority)

Complainant had not alleged that the documents produced by accused and corroborated by the record were forged or those were managed/maneuvered

Record unveiled that accused persons were juvenile at the time of occurrence

Revision petition was dismissed.

2021 MLD 1930 ISLAMABAD Judicial Precedent

O.XVII, R.3Production of evidenceAdequate opportunitiesSuit for declaration, permanent injunction and specific performanceSuit was dismissed due to non-production of evidence

Appellant contended that no notice for production of evidence was given rather some forgery/interpolation had been committed in the order sheet of Trial Court

No complaint before the relevant High Court, District and Sessions Judge or Member Inspection Team was submitted for conducting an inquiry of allegations against judge of Trial Court

Held, that appellant/plaintiff, despite repeated orders, failed to record testimony of his witnesses, delayed the proceedings on one pretext or the other

Conduct of appellant/plaintiff denied him the right to claim equity, when he had not come to the Court with clean hands

Appeal was dismissed accordingly.

2016 CLC 682 PESHAWAR-HIGH-COURT Judicial Precedent

O. XVII, R. 3AdjournmentsProduction of evidenceScopeSuit of plaintiff was dismissed by Trial Court under O.XVII, R.3, C.P.C.ValidityDespite many opportunities provided to plaintiff for recording of evidence, he failed to produce his witnesses

Plaintiff on several occasions, was warned with caution notice to comply with the court order and to produce evidence but plaintiff paid no heed to directions of court, thus, lastly he was proceeded under O.XVII, R.3, C.P.C. and on his failure to produce his remaining evidence, Trial Court closed the evidence and dismissed the suit for no evidence

Perusal of record would reveal that Trial Court had shown a lot of clemency in providing opportunities to plaintiff to do the needful and similarly plaintiff had abused the process of law to its maximum and choking the legal process of court for long two years

Order passed by trial Court did not warrant any interference in circumstances

Appeal was dismissed accordingly.

2016 CLCN 6 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O. XVII, R.3 & S.12(2)Constitution of Pakistan, Art.199Constitutional petitionNon-production of evidencePenal consequences

Application filed by respondent under S.12(2), C.P.C. for setting aside of judgment and decree was dismissed by Trial Court for the reason that respondent did not produce evidence on the date fixed

Lower Appellate Court remanded the case to Trial Court for decision afresh on merits

Validity

Trial Court lost sight of the fact that on the date when application was dismissed, neither parties were present nor last opportunity was provided by Trial Court on the request of delinquent party enabling court to proceed against under O.XVII, R.3, C.P.C.

Trial Court proceeded against respondent which was not in consonance with law

Order passed by Trial Court dismissing application under S.12(2), C.P.C. was not in accordance with law and was not sustainable, therefore, was set aside

Reasons given by Lower Appellate Court were based on true enunciation of law, therefore, the same were reiterated, ratified and endorsed

Application under S.12(2) C.P.C. would be deemed to be pending before Trial Court and respondent was allowed an opportunity to produce his evidence subject to payment of costs

Petition was dismissed accordingly.

2013 YLR 2086 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 25West Pakistan Family Courts Act (XXXV of 1964), S. 7(2)Constitution of Pakistan, Art. 199Constitutional petitionCustody of minorProduction of evidence

Petitioner moved application for custody of minor wherein during pendency of said application, an application was filed for summoning of the witnesses but the same was dismissed by the Trial Court

Contention of the petitioner was that witnesses were necessary for determining the welfare of the minor as it was to be proved that respondent/ mother had contracted hepatitis C

Validity

Guardian Court exercised the parental jurisdiction and in order to determine the welfare of the minor, there was no prohibition upon the said court to collect all the available evidence

No doubt the documents with regard to disease of the respondent/mother had been placed on record and those documents were denied by the respondent and in such eventuality it was in the interest of the minor that at least the evidence required to be produced by the petitioner must come on the record, the value of which would be determined by the Trial Court at the final hearing

Parties could, with the permission of the court, call any witness at any later stage under S. 7(2) of the West Pakistan Family Courts Act, 1964 if the court considered such evidence necessary in the interest of justice and such discretion should be liberally exercised in a beneficial manner

Since in the present case the welfare of the minor was involved, the Guardian Court should have allowed the petitioner to examine the witnesses proposed to be produced

Constitutional petition was allowed and impugned order was set aside.

2013 MLD 679 ISLAMABAD Judicial Precedent

S. 11 & 5Constitution of Pakistan, Art. 199Constitutional petitionSuit for recovery of maintenance allowance and dowerProduction of evidence

Husband impugned order of Family Court whereby his right to produce documentary evidence was closed on the ground that despite having given the last opportunity, the husband did not produce evidence

Validity

Interest of justice would be served if the husband was given a final opportunity to adduce his version as in the impugned order, the husband was afforded the last opportunity to submit reply to the application for production of documents and the case was, therefore, on that day, not fixed for production of documents

Constitutional petition was allowed, in circumstances.

2012 SCMR 1258 SUPREME-COURT Judicial Precedent

Execution of a document by Pardanashin affecting a right or interest in an immovable propertyProduction of evidenceScope

Where a Pardanashin lady was a party to a transaction affecting her right and interest in an immovable property, it was always on the person claiming such a right and interest to establish affirmatively that she substantially understood the nature of transaction and had the benefit of independent advice

Evidence in such regard must be aboveboard and unimpeachable.

2011 YLR 1674 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Production of evidencePrinciples

None of the parties to a suit can produce evidence contrary to facts stated in pleadings.

2007 YLR 2675 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.12Civil Procedure Code (V of 1908), O.XVIII, R.16Qanun-e-Shahadat (10 of 1984), Art.130Evidence, recording out of turnProduction of evidenceOrderConceding statementOpportunity of cross-examination

During recording of evidence of plaintiff, one of the defendants made conceding statement and on the basis of such statement, suit was dismissed

Judgment and decree passed by Trial Court was set aside by Appellate Court and the stilt was decreed in favour of plaintiff

Validity

Order of Trial Court and recording out of turn statement of defendant were acts beyond the scope of O.XVIII, R.16 C.P. C.

Such order of Trial Court was a non-speaking order recording no reason or the cause to deviate from the normal and routine course of trial and same was patent mistrial of the suit

Trial Court on recording out of/ turn .statement of defendant tinder oath, did not give opportunity of cross-examination to any of the parties

Defendants had a vested right to cross-examine the defendant who made conceding statement

In absence of opportunity of cross-examination, conceding statement of the defendant had no evidentiary value and could be excluded from the record

Statement of the defendant could not have been read as evidence nor could it be dealt with on merits by arty of the subordinate courts

Trial Court could not have rejected the statement on its merits and Appellate Court was riot competent to consider and treat the same as admission' of the defendant in favour of plaintiff

Judgments and decrees passed by both the courts below were set aside and case was remanded to Trial Court for decision afresh

Revision was allowed accordingly.