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Civil Revision No. 24 of 1963, decided on 29th October 1964.
S. 115‑Revision Interim order refusing to admit document in evidence‑Revision against such order competent.
No revision lies against an interim order admitting certain documents in evidence even if it be held that such admission was improper and illegal. The reason is that the appellate Court, if it be of the view that such documents should not have been admitted, can safely ignore such documents and proceed to decide the appeal on the rest of the evidence, but different considerations may prevail in a case where documents have been illegally kept out of evidence. In such a case the record would not be complete and the case may have to be remanded in appeal for taking fresh evidence on documents that have been improperly rejected and not allowed to be proved. In order to avoid unnecessary delay and expense the High Court may interfere in such a case.
Abdus Samad v. Zaidullah P L D 1959 Azad J & K 16 ref.
O. XIII, r. 1‑Expression "first hearing"‑Means day on which Court looks into pleadings and frames issues‑Civil Procedure Code (V of 1908), O. X, r. 1 & O. XIV, r. 1 (5).
O. XIII, r. 2‑Person in possession of document dying 3 months before framing of issues in suit‑Failure to produce document in time not proper ground for refusing to admit same subsequently.
Slier Afzal v. Muhammad Akbar P L D 1959 Azad J & K 65 and Lahore Improvement Trust v. Khuda Bakhsh‑Meraj Din P L D 1956 Lah. 252 ref.
Sh. Abdul Haiy for Petitioner .
B. A. Farooqi for Respondent No. 1.
Other Respondents in person.
This is a revision petition against the orders of the Additional Sub‑Judge, Muzaffarabad, dated 27‑4‑63 and 8‑6‑63, by which the documentary evidence of the plaintiff‑petitioner was not admitted.
The learned counsel for the respondent has raised a preliminary objection that the orders under revision do not amount to a case decided' within the meaning of section 115, C. P. C., therefore, a revision is not competent.
The learned counsel for the plaintiff‑petitioner has referred to copies of the statements of P. Ws., Abdul Hamid Clerk of: the Pak Bank Limited, Rawalpindi, and Muhammad Fazil Manager of the Srinagar‑Rawalpindi Transport Co. City Saddar Road, Rawalpindi. The learned counsel for the respondent has referred to copies of the orders recorded in the order‑sheet but the learned counsel for the petitioner has referred to certain orders passed during the recording of the evidence of these two P. Ws. The plaintiff‑petitioner wanted to have a document produced by Abdul Hamid P. W. 1, which was disallowed. Similarly, the plaintiff‑petitioner wanted to have a document produced by Muhammad Fazil P. W. 2, which was disallowed. The learned counsel for the plaintiff‑petitioner shows that he has come up in revision against these two orders disallowing the production of the documents by the P. Ws. The preliminary objection is covered by an earlier judgment of mine reported as Abdus Samad v. Zaidullah (P L D 1959 Azad J & K 16) in which it was laid down that:‑
"No revision lies against an interim order admitting certain documents in evidence even if it be held that such admission was improper and illegal."
The reason being that:‑
"The appellate Court, if it be of the view that such documents should not have been admitted, can safely ignore such documents and proceed to decide the appeal on the rest of the evidence, but different considerations may prevail in as case where documents have been illegally kept out of evidence.
In such a case the record would not be complete and the case may have to be remanded in appeal for taking fresh evidence on documents that have been improperly rejected and not allowed to be proved. In order to avoid unnecessary delay and expense the High Court may interfere in such a case."
In view of the rule of law laid down in P L D 1959 Azad J & K 16, the preliminary objection is overruled, since this revision is against the non‑admissibility of documents which have been illegally kept out.
The learned counsel for the defendant‑respondent referred to Order XIII, rule 1, C. P. C. which provides that:‑
"The parties or their Pleaders shall produce, at the first hearing, of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced"; and
Rule 2 which provides that:‑
"No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of the rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non‑production thereof, and the Court receiving any such evidence shall record the reasons for so doing."
The learned counsel's contention is that the documents that have been disallowed 'were not mentioned in the plaint and were not mentioned in the list of reliance even though they were not in the possession of the plaintiff. He says that the agreement which was sought to be produced from P. W. 2 was in the possession of the plaintiff Muhammad Jee, therefore, it could not be allowed into evidence as not having been filed with the plaint.
The first hearing' of a suit does not mean the day on which the witnesses are examined or the trial taken up, it means the day on which the Court goes into the pleadings in order to understand the contentions of the parties. In which issues have to be framed, the day on which such issues are framed is the R first hearing' of the suit inasmuch as on that day the Court looks into the pleadings with a view to understand the contentions of the parties. This is made clear by the provisions of Order X, rule 1 in which "the Court shall, at the first hearing of the suit, ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint, or written statement; if any, of the opposite‑party". Similarly, Order XIV, rule 1(5) may be referred to which provides that‑‑
"At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend."
So the parties or their Pleaders have to produce all documents in their possession or power either with the plaint or at any time before the framing of the issues. On referring to the file of the trial Court I find that the issues were struck on 13‑12‑1962, but Muhammad Jee plaintiff in whose possession it is alleged that the agreement was, which was sought to be produced from P. W. 2, died before this date.‑ There is an application on the record dated 20‑11‑62, in which it is written that Muhammad Jee plaintiff died two months back; and that his son Muhammad Iqbal be substituted in his place as his legal representative. So it is clear from the record, that Muhammad Jee, . the plaintiff in whose possession allegedly the document was died about 3 months previous to the framing of the issues. The plaintiff had called Muhammad Fazil as his witness alongwith the minutes book of the 'Company pertaining to the year 1957, and the agreement executed by Muhammad Azeem defendant in favour of the S. R. T. Co. pertaining to the building of the Company situate in Bazar Dheki Muzaffarabad. Muhammad Fazil appeared in the witness box and wanted to produce the agreement but the document was not allowed into evidence on the ground that it had not been filed with the plaint. Muhammad Fazil P. W. 2 stated that he is the Manager of the S. R. T. Co.; and that this document had been given into his possession by Muhammad Jee deceased.
The document has been drawn up on a stamp‑paper and there is no likelihood of its being forged now. I think the document should have been allowed into evidence. The learned counsel for the petitioner has cited Sher Afzal v. Muhammad Akbar (P L D 1959 Azad J & K 65), in which Abdul Hamid Khan, J., held that:‑
"The Court has wider powers to admit document in the interest of justice even if good cause for non‑production in time is not forthcoming."
Lahore Improvement Trust v. Khuda Bakhsh‑Meraj Din (P L D 1956 Lah. 252) was also mentioned in this judgment. The learned Single Judge of the Lahore High Court lays down that:‑
"Ordinarily authentic document should not be refused though produced at a late stage but that the Court had a discretion in the matter; and that the only reasonable construction of the words unless good cause is shown for the non‑production thereof' occurring in rule 2 of Order ‑XIII, C. P. C. is to construe them as meaning unless good cause is shown for reception in evidence in spite of such non‑production'."
P. W. 2 stated that the document had been given into his possession by Muhammad Jee, the decease plaintiff, and it is evident on the record that Muhammad Jee died before the framing of the issues, therefore, from the mere failure of the deceased‑plaintiff to produce it before the framing of the issues would not be a proper ground for shutting out the document.
Abdul Hamid P. W. 1 Clerk of the Pak Bank Limited, Rawalpindi, was not allowed to produce a copy of the ledger to prove the payment of the amount of Cheque No. 02474 dated 29‑11‑50, for Rs. 4,000. The learned trial Judge disallowed the production of the copy of the ledger on the ground that the witnesses had been called only to produce the original Cheque No. 02474. The learned trial Judge was labouring under a misapprehension as to the true state of affairs. The plaintiff in his application dated 29‑3‑63, had summoned a Clerk Record Keeper of the Central Bank of Pakistan, Rawalpindi, with the original Cheque No. 02474 dated 29‑11‑50, drawn in favour of Muhammad Azeem Khan with the proof of the payment of the amount of the Cheque to Muhammad Azeem Khan. Abdul Hamid P. W. 1 stated ‑that the Cheque No. 02474 dated 29‑11‑50, had been encashed on 30‑11‑50, when it was presented by Muhammad Azeem; and that the S. R. T. Co. Ltd. had been debited with the amount of this Cheque; and that he had brought proof of the payment of the Cheque which was in the form of a copy of the ledger entry but which was disallowed. P. W. 1 also stated that the original Cheque being more than 10 years old has been destroyed. Now the learned trial Judge. thought that the witness had only been summoned to produce the original Cheque whereas the witness had been asked to bring alongwith him not only the original Cheque but also proof of its payment to Muhammad Azeem Khan. The copy of the ledger entry which P. W. 1 sought to put into evidence was in evidence of the proof of the payment of the Cheque to Muhammad Azeem Khan. The same should not have been disallowed. The document has been illegally kept out of evidence.
Accepting the revision petition, the orders of the Additional Sub‑.fudge, Muzaffarabad, dated 27‑4‑63, disallowing the admission of the copy of the ledger into evidence and the order dated 8‑6‑63, disallowing the production of the agreement into evidence which P. W. 2 wanted to produce are set aside and the two documents are ordered to be admitted into evidence. The learned counsel for the plaintiff‑petitioner shows that he had not yet examined Muhammad Fazil P. W. 2 in full when the defendant was called upon to cross‑examine him. Now that the document has been admitted into evidence the plaintiff shall have the opportunity to further examine the witness.
K. B. A. Petition accepted.
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