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Civil Revision Petition No. 4 of 1952, decided on 26^th August 1952, under section 115 of the Civil Procedure Code for revision of an order of the District Judge in Baluchistan dated the 13th June 1952.

O. XIII, r. 2‑Original document presumed to be with plaintiff but not produced‑ Defendant seeking to produce attested copy during record of evidence‑Good cause.

The defendant's plea was that he had paid up certain sums to plaintiff through the latter's admitted attorney who was examined as a D. W. and who acknowledged having received sums, his power of attorney granted to him by the plaintiff having been returned to plaintiff after power had been with drawn from him by plaintiff. The original power of attorney was not produced by the plaintiff. The defendants thereupon sought to produce an attested copy of same.

Held, that under the circumstances there was good cause for allowing the copy on record.

Muhammad Arif for Petitioner.

Muhammad Ahmad for Respondent.

‑This is a revision petition under section 115, C. P. C. from the order dated the 13th June 1952, of the District Judge, in Baluchistan whereby petitioner's request for permission to produce an attested copy of a power of attorney and to call the attesting Magistrate as a witness was rejected.

The plaintiff-respondents filed a suit for recovery of a sum of Rs. 1,10,116‑14‑6 alleged to be due from the defendant petitioner on account of an unpaid balance of purchases made on credit. While admitting that there had been transactions between them, the defendant contested the correctness of the balance shown against him and also contended that he had not been given credit for certain sums (amounting to Rs. 61,858) paid by him to the plaintiff‑respondent. The issues were framed on the 18th November 1951 and the case was fixed for evidence on the 5th March 1950. The Court directed the parties to file "documents also within the same period". The defendant‑petitioner filed 28 receipts and books of accounts on the 23rd December 1950. The counsel for the petitioner closed his case on the 21st June 1951, reserving his right to examine his client generally on all the issues when putting him in the witness‑box in rebuttal.

On the 30th July 1951, the defendant‑petitioner examined one Ghulam Nabi (D. W. 1), who deposed that he had re ceived certain sums from the defendant as an attorney of the plaintiffs. He further stated that his power of attorney was subsequently cancelled by the plaintiffs and so he had returned the original deed of appointment (as attorney of the plaintiffs) to the latter.

On the 16th of May 1952, when the defendant had still some witnesses to examine, an application on his behalf was made praying that he be permitted to put in an attested copy of the power of attorney executed by the plaintiffs in favour of Ghulam Nabi. It was alleged on his (defendant's) behalf that he had mislead the said copy in his papers and had only just found it, and that the attesting Magistrate might also be called as a witness. This application was contested by the plaintiff on the grounds that the document was being produced at a very late stage and had not been mentioned to the list filed by the defendant.

The main contention on behalf of the plaintiff however, was that the document had been fabricated. The learned District Judge after hearing the parties' counsel rejected the petitioner's application. The reasons given by him, in his own words, was, "the main ground on which I reject the applica tion is that no good cause has been shown as to why the defendant failed to rely on this document at the time of filing written statement" though in the earlier part of his order, the District Judge, after discussing Order 13, rules 1 and 2 rightly observed that the main point was as to whether the defendant had good cause for non‑production of this document at an earlier stage. In the course of the same order, the learned District. Judge also made another important observation, namely, I would have allowed this document if it had been signed by the plaintiff or some other witness".

The question of the competency of this revision petition, on the ground whether this Court could interfere with an interlocutory order, has not been seriously contested and the learned counsel for the plaintiff‑respondents apparently appeared satisfied with the observation of the Hon'ble the Judges of the Lahore High Court in the Full Bench Ruling reported as A I R (30) 1943 Lah. 65. His main contention is that there are circumstances suggesting that the document is not genuine but has been fabricated.

In my opinion, it was not proper to adjudicate upon the genuineness or otherwise of any document without putting that document in evidence. The law does not permit any Court to refuse to receive any document merely on the ground that it is not genuine, though I am in full agreement that the nature of the document must be kept in view when the sufficiency of cause for non‑production at an earlier stage is to be decided.

In the case before me it appears that the defendant was relying chiefly on the payments made by him to the plaintiff through his attorney. The Attorney did not deny receipt of the said payments in his capacity as such on behalf of the plaintiff. The necessity to produce a copy of the power of attorney therefore did not arise till the attorney was subjected to cross‑examination by the plaintiff and it was revealed by the witness that on the cancellation of his appointment (as attorney) he had returned the original power of attorney to the plaintiff. It is therefore understandable that the defendant might not have deemed it necessary, in the first instance, to file his copy of Ghulam Nabi's power of attorney even if it be assumed that it was available with him at the time, because he had no reasons to think that the original would not be forth coming.

As a large sutra of money is involved and the original power of attorney is not forthcoming, it will not advance the cause of justice if the defendant be deprived of an opportunity to corroborate the statement of one of his witnesses, who is no other than an admitted ex‑attorney of the plaintiffs by the production of an attested copy of his power of attorney. It is open to tile plaintiff to challenge the authenticity of this document if he feels so advised. The production of this document becomes all the more necessary because the learned District Judge appears to doubt the genuineness of it on account of its late production.

In view of what has been stated above, I set aside the District Judge's order, dated 13th June 1952. and return the records with the direction that the Court below shall receive the document under Order 13,‑rule 2, Civil Procedure Code and proceed with the case according to law.

A.H. Petition accepted.

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