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Civil Appeal No.42 of 1984, decided on 24th January, 1988.

(On appeal from the Order and decree of the High Court dated 16 7 1984 in Civil Appeal No.18 of 1982).

O. XIII, R.4 Scope and application Duty of Court and parties to the litigation stated.

Order XIII, rule 4 postulates that every document admitted in evidence shall be endorsed and it shall contain

(i) title of the suit;

(ii) name of person producing document;

(iii) date on which it is produced;

(iv) statement of its having been so admitted; and

(v) shall be signed or initialled by the Judge.

The procedure prescribed under the rule provides a safeguard against the replacement, addition and multiplication of documents produced by parties, in judicial proceedings. It is for this reason that law has enjoined upon the Court to ensure that documents are endorsed containing the title of the suit, name of the party or person producing it, including the date and signature of the Judge. Primarily it is the duty of the Court to follow the rule in admitting a document in evidence. The parties have obligation to be vigilant so that their documents are exhibited in evidence in compliance with the provisions of law. Adherence to the prescribed procedure is always insisted upon, otherwise, its very object is defeated. But at the same time the rule is not deemed inflexible. Situations where procedure prescribed by Order XIII, Rule 4 was not followed arose very frequently. The Courts settled the controversies at rest, in appropriate manner, keeping in view the facts of each case.

O. XIII, R.4 When the Court is satisfied that document admitted in evidence, in derogation of the procedure, is genuine or admitted by opposite party and it was admitted in evidence without objection, it is permissible to read it into evidence.

Sadik Hussain Khan v. Hashim Ali Khan A I R 1916 P.C. 27; Duli Chand Maidhan v. Panthi and another 38 P L R 231 and Maya Dhari v. Chuni Lal Panna Lal A I R 1931 Lah. 119 ref.

O. XIII, R.4 When documents were admitted in evidence in absence of any objection from opposite party, failure of opposite party to object to the admission of documents in evidences, in Trial Court, estops him from raising an objection against their admission in evidence in appeal [Estoppel].

Bal Mukandji Maharaj v. Gokaran Singh and another A I R 1956 All. 124; Muhammad Akbar Khan and 3 others v. Said Khan PLD 1978 SC (AJ&K) 6; Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others P L D 1972 Pesh. 175; Hakim Khan v. Aurangzeb and another P L D 1975 Lah. 1170; Malik Din and another v. Muhammad Aslam P L D 1969 SC 136; Nathe Khan v. Mst. Rahmat Bibi and others P L D 1961 B.J. 96; Allah Ditta v: Sadar Din P L D 1961 Lah. 643 and Pribhadinomal Methumal and others v. Mt. Chuti and others A I R 1933 Sind 379 ref.

Appeal Affirmative findings of Appellate Courts on the point Supreme Court declined to interfere.

S.29 Limitation Act (IX of 1908), Arts. 10 & 120 When the property admits of physical possession, limitation starts from the time of passing of physical possession, otherwise from the time when instrument of sale is registered Provision of S.29, Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 B. K. applies to the case not covered by Art.10, Limitation Act, 1908 Where in a case provisions of Art.10, Limitation Act, 1908 and S.29, Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 B. K. do not apply, provisions of Art. 120, Limitation Act, 1908 come into operation.

Basharat Ahmed Sheikh for Appellants.

Agha Ashiq Hussain for Respondents.

The main proposition raised here in the appeal is that judicial record of previous suit is admissible in evidence without adhering to the conditions prescribed under Order XIII, rule 4, Civil Procedure Code. The other proposition pertains to limitation in pre emption case.

2. Nazar Hussain Shah, Qamar Hussain Shah and Kazim Hussain Shah, three brothers, brought a collective suit for declaration and possession of the suit land comprising survey No.41 measuring 18 marlas and No.54 one kanal 14 marlas situate in village Akrote Syedan, Tbh.si1 Kotli, in exercise of their right of prior purchase against a compromise decree passed in favour of defendant respondents on November 11, 1969. It was averred that "the compromise decree in dispute was in fact a sale but in order to defeat the prior right of purchase of plaintiffs, by collusion of vendor and vendees the transaction of sale was disguised in the shape of decree of the Court. Here it may be explained that Mazhar Hussain Shah, Riaz Hussain Shah and Fiaz Hussain Shah, defendant respondents, instituted a suit for declaration claiming ownership in the land by virtue of oral sale in their favour made by Nazar Hussain Shah in May 1956, for a sum of Rs.1,000 and on the basis of adverse possession. The suit was instituted on November 11, 1969. Nazar Hussain Shah entered into compromise and admitted the suit by accepting additional Rs.500 the price of land. In view of the compromise between the parties the decree was passed on the same day, i.e., November 11, 1969.

3. In their suit plaintiffs alleged that the defendants concealed the fact of passing of decree in their favour and ultimately moved the Revenue Authorities for sanction of mutation in their names. The mutation of the suit land was attested in the name of the defendants on August 8, 1974, wherein the defendants decree holders were shown in possession of the land. The plaintiffs alleged that they acquired the knowledge of the transaction of sale in the shape of compromise decree after the attestation" of mutation when they brought the suit for grant of the requisite relief, on January 11, 1975. The suit was resisted by the defendants who admitted the passing of decree in their favour but denied the prior right of purchase alleged by the plaintiffs. When the parties were put to proof of their case, plaintiffs gave oral and documentary evidence and also moved an application on November 14, 1979 and requested the Court to summon the judicial file of previous suit titled "Mazhar Hussain Shah v. Nazar Hussain Shah" decided on November 11, 1969. The judicial file was desired to be summoned as evidence of plaintiffs in support of their claim. The application was not opposed by the defendants. The request for summoning of the record as evidence of plaintiffs, was repeated by another application moved on February 14, 1980. On receipt of the judicial file it was placed on the file of the trial Court when the counsel for the plaintiffs made a statement with a reference to the aforesaid judicial file and closed the evidence of plaintiffs. It appears from the record that when the judicial file was" admitted in evidence of plaintiffs, no objection was raised to it by the defendants. The trial Court decreed the suit for possession by pre emption on payment of Rs.1,500 the price of the land.

4 In appeal by defendants, the learned District Judge excluded the aforesaid evidence from consideration as in his view the judicial file could not be read into evidence unless was duly admitted in accordance with the conditions laid down under rule 4, Order XIII, Civil Procedure Code. Thus, by excluding the documents from consideration, the District Judge dismissed the suit. In second appeal, the learned Judge in the High Court concurred with the finding of the District Judge and dismissed the appeal of the appellants.

5. Order XIII, rule 4 postulates that every document admitted in evidence shall be endorsed and it shall contain:

(i) title of the suit;

(ii) name of person producing document;

(iii) date on which it is produced;

(iv) statement of its having been so admitted; and

(v) shall be signed or initialled by the Judge.

The procedure prescribed under the rule provides a safeguard against the replacement, addition and multiplication of documents produced by parties, in judicial proceedings. It is for this reason that law has enjoined upon the Court to ensure that documents are endorsed containing the title of the suit, name of the party or person producing it, including the date and signature of the Judge. Primarily it is the duty of the Court to follow the rule in admitting a document in evidence. The parties have obligation to be vigilant so that their documents are exhibited in evidence in compliance with the provisions of law. Adherence to the prescribed procedure is always insisted upon, otherwise, its very object is defeated. But at the same time, the rule is not deemed inflexible. Such situations arose very frequently. The Courts settled the controversies at rest, in appropriate manner, keeping in view the facts of each case. One of the views is that in such a situation it is expedient to remand the case to trial Court for its compliance with the provisions of rule 4, Order XIII, Civil Procedure Code. The other view is that if the Court is satisfied that the document admitted in evidence, in derogation to the procedure, is genuine or admitted by opposite party and it was admitted in evidence without objection, it is permissible to read it into evidence. In present case we propose to agree with the later view.

6. Mr. B. A. Sheikh, toe learned counsel for the appellant emphasised that the documents admitted in evidence are part of the judicial record" as the decree was admittedly passed on the basis of those documents in favour of the defendants. Therefore, these documents can be looked into by the Court to decide that the impugned decree was in fact a transaction of sale. Agha Ashiq Hussain, the learned counsel for the opposite side, invited our attention to the decision of the "Privy Council titled "Sadik Hussain Khan v. Hashim Ali Khan A I R 1916 P C 27 and contended that the Privy Council deprecated the practice of admitting the document in evidence without compliance with the procedure prescribed under rule 4, Order XIII, Civil Procedure Code. It is correct that the Privy Council deprecated the practice of civil Courts in the sub continent for their non compliance with the provisions of rule 4 and extended warning that documents admitted in evidence in non compliance of the provisions of Civil Procedure Code, shall not be read in evidence, but the fact remains that impugned order was not changed by the Privy Council, on this ground. The dictum of the Privy Council received attention of superior Courts of the sub continent in various cases. The consensus is that if it is felt satisfied that it was in the interest of justice to exclude the document from evidence for non compliance of the procedure, the case should be remanded to trial Court so that documents are properly admitted in evidence. On the other hand when Court is satisfied that the document in question is genuine and it is admitted in evidence, though in non compliance of rule 4, but without objection, it is expedient to consider the document in evidence for decision of the case.

7. The other case relied by the learned counsel for the respondent is "Duli Chand Maidhan v. Panthi and another 38 P L R 231. In this case, it was observed that when a document has been admitted into evidence, it is not permissible to object to its admissibility on the ground of its not being properly stamped. It was further held that where a document even if not properly stamped, has been admitted by one of the defendants, it cannot be rejected as against him. This case does not help the respondents. In Maya Dhari v. Chuni Lal Panna Lal A I R 1931 Lah. 119, the learned Judges highlighted the procedure of formal proof of documents into evidence. We are not in disagreement to the aforesaid case as it is reiteration of the riles of procedure, listed in the Code.

8. The documents in question, as listed earlier, consist of compromise deed, copy of Jamabandi 1967 68, order of the Court and decree sheet. The terms of compromise deed are reproduced in order of the Court. These terms are reproduced in the decree. The copy of Jamabandi 1967 68 contains the note of Revenue Officer who issued the copy. It reflects that the copy was secured by the vendor (Nazar Hussain, the owner of land) for the purpose of alienation of land in favour of vendees. The object of production of the evidence in question appears to be to prove that the compromise decree was a transaction of alienation, as by the relevant time the defendants had not taken the possession of the land. In the circumstances, the proposition of adverse possession was ill founded. Here we may state that the plaintiffs appended copies of the Order of the Court and decree sheet with their plaint. These copies are duly attested. But inadvertently the documents were not admitted in evidence in compliance with the rule of procedure. Be that as it may, the defendants do not contest the genuineness of the aforesaid documents, as the compromise deed and copy of Jamabandi were produced and relied upon by them to secure the decree in dispute. It is permissible to hold that the documents intended to be read into evidence are admitted. Moreover, the defendants failed to object to the admission of these documents in evidence in the trial Court No objection was raised even in arguments. This suggests that documents were admitted in evidence in absence of any objection from the opposite side. Failure of defendants to object to the admission of documents in evidence, in trial Court, estops them from raising an objection against their C admission in evidence, in appeal. In "Bal Mukandji Maharaj v. Gokaran Singh and another A I R 1956 All. 124, a copy of the statement of witness made in previous suit was relied by plaintiffs and it was placed on record of the trial Court. The statement was admitted by the counsel for the defendants. Nevertheless the document was admitted in evidence, without adhering to the provisions of rule 4, Order XIII, Civil Procedure Code, like the present case. Later on an objection in reading the document in evidence was repelled. It was observed:

"It appears, however, that no formal exhibit mark was assigned to that paper. Failure on the part of the Court to give an exhibit mark on that paper, which was admitted by counsel for the defendant, would not, therefore, exclude that paper from being taken into consideration in evidence."

An identical proposition was raised before this Court in Muhammad Akbar Khan and 3 others v. Said Khan P L D 1978 SC (AJ&K) 6. It was a pre emption case where defendant vendee pleaded waiver against the pre emptor and produced a document executed by plaintiff wherein he agreed not to exercise his right of pre emption. The document was placed on the file but trial Court omitted to mark exhibit and endorse as warranted under rule 4, Order XIII, Civil Procedure Code. The learned counsel for the pre emptor contended that the document could not be read in evidence as in his was not endorsed by the trial Judge in violation of the rule of procedure. The objection was observed:

"It would appear that requirements of rule is that w en a document is admitted in evidence it must be endorsed by the Judge to record the fact that it has been admitted into evidence after complying with necessary legal formalities. We do not approve the procedure adhered to in this case of making exhibit on tore document Exh. D.A. in a mechanical manner without proper application of mind and would insist on compliance of the provisions of Order XIII, rule 4 (for which Registrar, Supreme Court shall issue a circular to the Registrar, High Court) but nevertheless, in our opinion, this neglect on the part of the trial Judge would not take away its probative value especially when it had been referred to in arguments and made use of in the judgment. This omission in making an endorsement on document, in the circumstances of this case, remains only an irregularity."

An identical view was expressed in various cases and we cite the same as Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others P L D 1972 Pesh. 175; Hakim Khan v. Aurangzeb and another P L D 1975 Lah. 1170; Malik Din and another v. Muhammad Aslam P L D 1969 SC 136; Nathe Khan v. Mst. Rahmat Bibi and others P L D 1961 B.J. 96; Allah Ditta v. Sadar Din P L D 1961 Lah. 643 and Pribhadinomal Methumal and others v. Mt. Chuti and others A I R 1933 Sind 379.

9. The defendants obtained the decree in dispute in their favour by pleading oral sale and adverse possession. In support of adverse document produced and relied by them was the copy of Jamabandi 1967 68. According to the entries of record of rights the defendants were not shown in possession of the land. Moreover, the note of Revenue Officer, who issued the copy, vividly indicates that the defendants intended to purchase the land and in order to secure registered sale deed, obtained the copy of the record of rights, The note of the Revenue Officer is helpful to appreciate the nature of transaction. In addition to the aforesaid evidence, we have also documentary evidence on record which helps the plaintiffs to prove that the defendants entered into possession of the land at the time of attestation of mutation, on August 8; 1974. Exh. P.D. goes a long way to show that the possession of land was taken by the defendants at the time of attestation of mutation and not before that. This is just to point out that defendant respondent took possession of the land many years after passing of the decree. Their claim of adverse possession to obtain the impugned decree is found devoid of force. Likewise, there is no evidence to support their claim of oral sale. Contrarily, the record of rights and the terms of compromise, sufficiently support the counterclaim. The learned Judge in the High Court failed to advert to the factual and legal aspect of the case. He simply confined to affirm the order of the District Judge. The findings of the trial Court on this issue suffer from no defect like misreading of evidence and misconstruing the law. We approve the same and hold that the decree in question was in fact a transaction of sale and it was disguised in that. shape, in order to defeat prior right of purchase of plaintiffs.

10. On the point of limitation Agha Ashiq Hussain, the learned counsel for the respondents, argued that the suit having been instituted more than 5 years after passing of the decree was time barred. There is no force in the objection as the finding of trial Court holding the suit within time was not disturbed by the District Judge and the learned Judge in the High Court. In view of the affirmative finding of the appellate Court, it is not permissible to entertain the point in this Court. Nevertheless the facts of the case do not support the objection. Limitation in pre emption suit is controlled by Articles 10 and 120 of the Limitation Act and section 29 of the Right of Prior Purchase Act. Under Article 10 the period of limitation is 1 year to enforce a right of pre emption. When the property admits of physical possession, limitation starts from the time of passing of physical possession, otherwise, from the time when instrument of sale is registered. Section 29 applies to the case not covered by Article 10 of Limitation Act. Where the provisions of Article 10 and section 29 do not apply, the provisions of Article 120 of Limitation Act, come into operation. In present case the alienation of land was not made by a registered sale deed. According to the plaintiffs, transfer of possession of the land followed the attestation of mutation. The mutation was attested on August 8, 1974. Therefore, if it is assumed that the possession followed the sanction of mutation then the suit was obviously within time. As noticed earlier, vendees failed to express definite time, in their written statement, of taking physical possession of the land. They also failed to appear as witness to rebut the allegation of plaintiffs in this regard. In the circumstances we are left only with the evidence of plaintiffs and Exh. D.A., copy of Khasra Girdawari for the period of 1961 65 produced by defendant respondents. Khasra Girdawari Exh. D.A. does not support the possession of vendees. Vide D.A., Karam Shah and Talib Hussain Shah were shown in possession on behalf of Nazar Hussain Shah, as "Ghair Moroosi" on payment of Batai. Therefore, it is useless piece of evidence, having no bearing on the point at issue. Exh. P.B. is a copy of mutation attested on August 8, 1974. According to the entries the vendees were shown in possession in 1974. Exh. P.D. is a copy of Girdawari. The entries of Girdawari reflect the possession of vendees in Kharif 1974, i.e., the month of September. The documentary evidence, thus, lends support to the claim of pre emptors. The objection is repelled.

In view of our conclusion, we accept the appeal. Findings of District Judge and High Court are set aside and the order of the trial Court is restored. The cost shall follow the event.

M.B.A. /206/S.C.A. Appeal accepted.

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