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Civil Revision No. 1931/1) of 1986, decided on 16th May1987

(a) Civil Procedure Code (V of 1908)‑‑

‑‑‑S. 115‑‑Revision‑‑Exercise of certain discretionary power of Court conditioned by law upon the existence of certain prerequisites or pre‑conditions‑‑Discretionary power not capable of being exercised by Court if such pre‑conditions not fulfilled‑‑Revisional jurisdiction does not extend to an order passed by lower Court in exercise of its discretion unless discretion had been exercised fancifully and arbitrarily‑‑Erroneous finding on point of fact or even of law, not relatable to exercise of jurisdiction by Court below does not become amenable to exercise of revisional powers.

Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 and 1984 S C M R 504 ref.

(b) Civil Procedure Code (V of 1908)‑‑

‑‑‑0. XIII, Rr. 1 & 2, O. VII, R. 14 & S. 115‑‑Production of additional evidence‑‑Plaintiff applying for permission to produce additional documents after four years of the institution of the suit‑ Such documents not mentioned in that list of reliance nor produced on the first hearing of the case as required by law‑‑No cause shown by plaintiff for his failure to produce such documents‑‑Trial Court being not satisfied with the genuineness of the documents, refused permission to produce in exercise of its discretionary power‑‑High Court refused to interfere in exercise of such power in revision.

Syed Tanseer Asghar and Ch. Inayat Ullah Cheema for Petitioner.

A suit filed by the petitioner in May, 1982 for recovery of Rs.2,56,821.00 is still pending trial before Mr. Muhammad Zafar Sultan, Civil Judge, Lahore. Statement of Zulfiqar Ali, sole proprietor of the petitioner Firm, was in the process of being recorded on 4‑1‑1986 when a request was made by his counsel for grant of time to enable the plaintiff to apply for permission to produce certain documents by way of additional evidence and the case was adjourned for almost a month. In consequence, he put in an application bearing the date 6‑2‑1986 for grant of permission under Order XIII Rule 2 of the C.P.C. to tender 3 documents described as under:‑

"(a) The letter dated 30‑6‑1979 sent by the petitioner to the defendant No.4 regarding the despatch of M.S. sheets weighing 31 M.T.

(b) Postal receipt No.128 in original, dated 30‑6‑1985.

(c) A.D. receipt dated 2‑7‑1979."

2. It was alleged in para 4 of the petition that these documents were duly mentioned in the list of reliance and reference to them had been made in the plaint itself.

3. Learned trial Judge found that the assertion with regard to the mention of the first‑mentioned documents is false and since it was in the knowledge and possession of the plaintiff, therefore, either E the original or a copy thereof was necessary to have been filed with the plaint or, at least, an entry there about should have been made in the list of reliance, as per the requirements of Order VII Rule 14 of the C.P.C. He also held that the document is a private one and its genuineness is doubtful. Since there was no cause shown at all for its non‑production earlier and muchless any for its production at that stage, after the expiry of almost four years since the institution of the suit, therefore, he rejected the application by his order dated 14‑5‑1986, which is assailed in this Civil Revision instituted on 21‑10‑1986.

4. Record of the suit has been requisitioned and perused in the presence also of the respondents who were issued an intimation for hearing at the pre‑admission stage in pursuance of the order dated 4‑10‑1986 passed by my learned brother Muhammad Sharif J.

5. Genuineness of the afore‑mentioned document is seriously contested by the respondents on the reasons detailed in their written reply to the application submitted in the trial Court. It is admitted that neither of the, three documents was produced earlier and, in fact, none of them is available on the trial Court's record even now. It is undeniable that neither of them has been mentioned specifically in the list of reliance and their mention is also not found to have been made in the plaint. The suit was instituted on 25‑5‑1982, written statement was filed on 3‑11‑1982 and issues were settled on 28‑2‑1983. Apart from the provisions of Order VII Rule 14 of the C.P.C. enjoining that a document sued upon will be produced with the plaint and an entry about the other documents intended to be relied upon shall be made in the list to be added to the plaint, there also is the provision made in Rule 12 of Order XI regarding the discovery on oath of the documents relating to any matter in question which are or have been in possession of a party. Since only a copy is now desired to be produced with the assertion that the original thereof had been sent to the concerned defendant, therefore, the plaintiff could have had resort to this provision to make the original liable to be produced in the Court under Rule 14 thereof. Then, there is the provision made in Rule 1 of Order XIII for all documents of every description, not already produced, having to be produced on the first hearing of the suit and Rule 2 thereof prohibits the reception at any subsequent stage of such documents as are not produced in accordance with the provisions of Rule 1 and a discretion is vested in the Court to H receive them upon being satisfied about the existence of good cause for non‑production earlier and it is further enjoined that the Court receiving any such evidence shall record the reasons for so doing.

6. Not only that the plaintiff did not produce these documents in accordance with the above‑mentioned provisions and he did not annex them even to his application, but also no cause even worth the name was alleged regarding his failure to so produce those documents and, thus, he failed to make out any case at all for their reception. However, the trial Court was not satisfied even about the genuineness of those documents. It is uncontrovertable that where the exercise of a certain discretionary power is conditioned by the law upon the existence of certain pre‑requisites and those pre‑conditions are not fulfilled then that power does not become capable of being exercised. The order passed by the learned trial Judge is clearly correct in the circumstances of the case. It has been held in Kanwal Nain and 3 others v. Feteh Khan and others (P.L.D. 1983 S.C. 53) that revisions' jurisdiction does not extend to an order passed by a lower Court in C exercise of its discretion unless it is shown that the discretion had been exercised fancifully or arbitrarily. Such is not the case here and the impugned order is unexceptionable on the legal plane. Furthermore, such an erroneous finding on a point of fact or even of law as is not relatable to the exercise of jurisdiction by the lower Court does not become amenable to the exercise of revisional power 1984 S C M R 504 refers).

7. Upshot of the foregoing is that there is no case made out at [D all for exercise of revisional jurisdiction and this revision petition is accordingly dismissed in limine.

8. Record of the trial Court will be returned immediately for being proceeded with according to law.

K . B . A . / N‑49/L Application dismissed in limine.

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