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Civil Revision No. 258 of 1981, decided on 23rd September, 1981. .311

‑‑O. XII, r. 8‑Production of documents‑Permission‑‑Respondent giving notice under O. XII, r. 8 to petitioner for production of document but petitioner denying having possession of same‑‑Res pondent, held, justified in seeking permission of Court for produc tion of secondary evidence and same rightly granted, in circum stances.‑[Evidence].

Anwar‑ul-Haq Gillani for Petitioner.

This civil revision arises from the order of learned Civil Judge, Multan, whereby he on 14th July, 1981 accepted the application submitted by respondent/defendant Sultan Textile Mills Ltd., Karachi, in a suit for declaration titled, the Co‑operative Textile Mills Ltd. Khanewal v. Sultan Textile Mills, pending adjudication before the learned Civil Judge, Multan.

2. The fact; giving rise to this petition are that the petitioner/plaintiff filed a suit against respondent defendant for declaration to the effect that respondent/defendant is not entitled to claim the refund of security deposit as he failed to perform part of his contract within the specified time. After framing the issues, the parties were asked to adduce evidence. Petitioner/plaintiff examined his witnesses but the respondent/defendant did not bring his evidence on some dates fixed by the Court.

During the trial, the respondent/defendant submitted application in accordance with Order XII, rule 8, C.P.C. to produce some document but the same was dismissed. On 6th June, 1981, respondent/defendant applied for permission to produce secondary evidence. The trial Court directed the plaintiff/ petitioner to submit his reply which was filed on 24th June, 1981 and the case was adjourned for arguments for 6th July, 1980. It is happened that on 6th July, 1981, respondent/defendant filed another application for permission to file the list of documents relied upon by him. Reply of this petition was also submitted on 13th July, 1981. The learned Civil Judge, after hearing the arguments on the above. mentioned applications, accepted the prayer and allowed the respondent/ defendant to file list of documents relied upon and to produce secondary evidence. Hence this petition straightaway to the High Court.

3. I am of the opinion that revision should have been filed before the learned District Judge under section 115 (2), C. P, C. Since this Court having a concurrent jurisdiction has already entertained the same and allowed interim relief on 26th July, 1981, I propose to consider this petition.

Learned counsel for the petitioner raised two points. First, that on the failure of respondent/defendant to produce evidence on 6th June, 1981, the trial Court should have closed the evidence of respon dent/defendant and decided the case forthwith under Order XVII, rule 3. Secondly, that permission to produce secondary evidence and file list of documents was without legal justification because the respondent/ defendant failed to submit the list of documents relied upon with the written statement and applied for the permission after the lapse of about 11 years without giving any plausible explanation.

4. After hearing the learned counsel and going through the material placed on the record of this petition, I am of the opinion that so far as the first contention is concerned the trial Court was not legally bound to close the evidence of respondent/defendant on 6th June, 1981 and had a discretion in the matter. I do not find any illegality in the order. The trial Court was competent to grant time and adjourn the case to enable the respondent/defendant to adduce his evi dence. In para. 5 of this petition it is mentioned :‑

"that on 6th June, 1981, the defendant‑respondent instead of producing evidence submitted another application for permission to produce secondary evidence. The learned trial Court instead of proceeding to decide the suit in accordance with Order XVII, rule 3, C. P. C., fixed the next date of hearing for reply of the application for permission to produce secondary evidence as 24th June, 1981."

I have considered the order and am of the view that this is a legal order.

So far as the second objection is concerned, I find that on 28th flay, 1981, the respondent/defendant have given notice in accordance with Order XII. rule 8, C. P. C. but the petitioner/plaintiff denied the possession of those documents. In this view of the matter, I am of the opinion that respondent/defendant was justified in seeking permission to produce the secondary evidence, and the same was rightly granted. I find that the trial Court has exercised its jurisdiction legally and properly.

5. For the foregoing reasons I decline to interfere in the impugned order. Dismissed in limine.

M. Y. M. Petition dismissed.

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