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Civil Revision No.2403-D of 1985, decided on 16th March, 1987.

---Arts.76(F) & 90--Public document--Mode of Proof---Secondary evidence--Admissibility of--When original document happened td be public document same, held, could be proved only through a certified copy thereof and by no other kind of secondary evidence under Art.90 of Qanun-e-Shahadat Order, 1984.

Malik Din and another v: Muhammad Aslam P L D 1969 S C 136; Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others P L D 1973 S C 160 and Ali Mohataram Naqvi v. Messrs Cogefar-Astaldi Sidmail P L D 1986 Kar. 574 ref.

---S.115--Qanun-e-Shahadat Order (10 of 1984), Arts.76(F) & 90- Public document--Mode of proof--Certified copy of a public document having been produced in evidence before Trial Court and no objection either as to its admissibility or mode of proof having been raised by opposite-party at time of production of such document, Trial Court, held, was patently erroneous in observing that document should have rather been proved by calling original document orb examining official, concerned with its preparation--View of Appellate Court below that disputed document was not related to property in dispute was also not correct as disputed document admittedly was obtained at the behest of respondents themselves and no such objection was taken by respondents at the time when document was being tendered i,. evidence by petitioner.

C . A . Saeed for Petitioner.

S.M. Zubari Asst. A.A.-G. for Respondents.

Date of hearing: 16th March, 1987.

This revision is directed against the judgment/ decree, dated 21st of September, 1985, passed by the learned additional District Judge, Kasur, in first appeal. The petitioner-plaintiff sued the respondent-Province of the Punjab for recovery of Rs.24,955 as arrears of rent for his property situated at Pattoki on the ground that it was being used as police post without payment of rent. He explained that although according to the orders of the Rent Controller, the respondents-defendants had been depositing rent at the rate of Rs.160 per mensem, yet in the assessment of the Executive Engineer, Buildings Division the rental was Rs.873 per month and that the respondents failed to pay at this rate from November, 1980, till October, 1983. He added that after adjusting the payment already made, a balance of Rs.24, 955 was still due from the respondents and that they failed to clear it. Further he pointed out that due to default the respondents had already been ejected.

2. The suit was resisted and appropriate issues were framed. In evidence the petitioner placed reliance upon the letter Exh.P-1 of the Executive Engineer, Buildings Division, wherein he had assessed the rent of the impugned building at the instance of the respondents Police Department to be Rs.873 per month. The trial Court excluded this letter from consideration on the ground that neither its original was called nor was any official concerned with its preparation summoned to prove it. Consequently the suit was dismissed. In appeal too, the learned Additional District' Judge ruled it out of consideration though for a different reason. He took an impression that it did not sufficiently indicate if it related to the impugned building.

3. Mr. C. A. Saeed for the petitioner took a serious objection to the exclusion of this document stating that it being a copy of public record needed no extraneous proof by calling its author or any other official, nor was any such objection open to the respondents as they failed to raise it at the time of its admission. He relied upon Malik Din and another v. Muhammad Aslam P L D 1969 S C 136 for the view that when initially a document was admitted in evidence, no objection to its admissibility could be taken subsequently regarding its mode of proof.

4. In reply Mr. S.M. Zubair, Assistant Advocate-General referred to Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others, P L D 1973 S C 160 and Ali Muhataram Naqvi v. Messrs Cogefer-Astaldi Sidmail P L D 1986 Kar. 574 urging that the document having not been proved beyond doubt to be a certified copy of the public record, was rightly excluded.

5. I do not find if the lower Courts excluded this document as it was not a certified copy of a public document. This is nowhere in the two judgments. The trial Court ruled it out believing that some official should have been called with its original to prove that it was a true copy thereof. This procedure is not countenanced by sections 65 and 79 of the Evidence Act. When the original is the public record, as is provided in section 65(e) of the Evidence Act, it can be proved only through a certified copy and by no other kind of secondary evidence. It will mean that there was no need to call the original, nor the author thereof. Certified copy claimed a presumption of truth and genuineness under section 79 of the Evidence Act. All that was to be done was to formally tender it in evidence and the petitioner had done the same. Before the trial Court, no objection either as to its admissibility or mode of proof, was taken. The trial Court was patently erroneous in observing that it should have rather been proved by calling the original or examining the official concerned with its preparation. Nor was the opinion of the learned Additional District Judge any the better. He happened to hold that there was, no indication to co-relate it to the impugned building. It will be appreciated that this was a question of fact regarding which an objection should have been raised when it was being tendered. No, was any question put to the witnesses of the petitioner including himself when he claimed in his deposition that it very much related to the impugned building. Besides, the document itself suggested that it was obtained in reply to at least two letters written by the Police. Department to the Executive Engineer for making rental assessment of this very building. In other words, it had been raised by the respondent Department through their own effort about the building in dispute and, therefore, they could not subsequently assert that it related to some other property. The learned additional district Judge clearly misdirected himself in excluding this certificate on a pretext which was not urged at any stage.

6. The reliance s cited by Mr. S.M. Zubair for the respondent Province were not much helpful. In Khan Muhammad Yusuf Khan Khattak's case the dispute related to admissibility of Form-E which obviously was sought to be proved through a photostat. The original thereof was not placed on the record and there was no indication if the copy was allowed to be brought on the record by the Tribunal after consciously considering this aspect. It was held to have been exhibited in a perfunctory manner. There were over-writings on it and the very original thereof was considered to be an genuine document. Besides all else it was a private document apparently smuggled in the record in a dubious manner which made the Court to look at it sceptically. No such circumstances in relation to the certificate P-1 were brought on the record; not even the slightest reference to its ingenuineness was hinted at. It was allowed to be -brought on the record implicitly presumably because it had been obtained at the behest of the respondents themselves after having persuaded the Executive Engineer by a number of letters for giving his assessment. The point to be noted was that it was not a private document like Form-E of the precedent case; and instead it bore out an inter-office communication between two Departments. There was no occasion for the Executive Engineer to have fabricated it. The case cited is clearly distinguishable. The Ali Mohataram Naqvi's case rather helps the petitioner in that it precluded raising objection a later stage against a document admitted during trial on the bore of mode of proof. The trial Court clearly harboured under an impression that the mode of its proof was faulty and the authority seems to go against its view. Thus the exclusion of the document cannot be sustained. After its admission it formed an integral part of evidence. It proved to the hilt that the respondents were liable to pay at tale rate of Rs.873 per month, of course, minus the payment already made with the Rent Controller. The balance was rightly claimed.

7. The revision is accepted, the judgment/decree of the learned Additional District Judge is set aside and instead the petitioner's suit is decreed with costs throughout.

H. B. T./S-38/L Revision accepted.

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