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Civil Revision No. 236 of 1962, decided on 10th July 1963.

O. VII, r. 18, O. XIII & S. 115‑Documents relied upon to be produced or disclosed at earliest opportunity‑Party's witness producing document not mentioned in list of reliance, no application having ever been made for its production‑Refusal of Court to admit in evidence document, held, neither in excess or jurisdiction nor materially irregular to justify interference in revision.

O. XXII, rr. 3 (1) & 5‑Mere fact that list of legal representatives neither complete nor accurate‑No ground for abatement of suit in toto: (Obiter).

Raja Muhammad Anwar for Petitioners.

Mahboob Elahi for Respondents.

Date of hearing: 20th June 1963.

This is an application under section 115 of the Code of Civil Procedure for the revision of an order passed by the trial Judge in the course of a pending suit by which he refused to allow a certain document to be produced in evidence.

2. The first question to be determined is whether a matter of this kind is revisable under section 115 of the Code of Civil Procedure.

3. The circumstances are these: A mortgagor instituted a suit against his mortgagees for the redemption of the mortgaged property, The suit was instituted on the 30th of January 1958, It seems to have remained pending without any substantial progress for nearly 13 months when on the 20th of February 1959 the written statement was filed. Nothing much seems to have happened thereafter for several months. On the 26th of December 1959, the plaintiff died. His children (not minors)‑two sons and two daughters‑and their mother, made an application on the 9th of February 1960, claiming that they were the legal representatives of the deceased plaintiff. To this application, a reply was made by the mortgagees on the 5th of April 1960, in which they asserted that the mother of the children of the deceased plaintiff, who had put herself forward as one of the legal represen tatives, was in fact not a legal representative of the deceased plaintiff, because she had been divorced; and that another woman Mst. Karam Begum alias Fazlun‑Nisa was the lawful widow of the deceased plaintiff and as such was one of his legal representa tives. It was further stated in the reply that a son of the deceased plaintiff had died during the lifetime of the deceased plaintiff and the children (minors) of the pre‑deceased son should also be included among the legal representatives of the deceased plaintiff. The objection thus, was that the list of legal representa tives was neither complete nor accurate, and it was claimed that since the period of limitation under Article 176 of the Limitation Act was over, the suit had abated.

4. The replication to this reply was filed on the 26th of September 1960, in which it was denied that Mst. Karam Begum was a widow of the deceased plaintiff. It was re‑asserted that the mother of the two sons and two daughters, who had originally made the application was in fact the widow of the deceased plaintiff. It was further denied that there were any other heirs of the deceased plaintiff.

5. On these pleadings on the question of legal representa tives of the deceased plaintiff, issues were framed on the 26th of September 1960. No list of reliance on any document was put in by either party in relation to those issues. The mortgagees (defendants) who were objecting to the accuracy and completeness of the list of legal representatives put in a list of witnesses whom they intended to examine in this connection, in which was included the name of one Mahmood Khan, son of Sube Khan. It was not stated, however, either in the list, or in any separate applica tion or in any other connection whatsoever that this witness was to produce any document.

6. These issues remained pending without any real progress for over a year and a half, and ultimately came up for evidence in June 1962. Mahmood Khan, son of Sube Khan appeared as a witness on the 16th of June. He wished to produce from his possession a document. The learned Judge did not permit him to do so and passed the following order. (Translation from Urdu)

"At this stage the counsel for the defence wants a kabinnama to be produced from the possession of the witness which the witness has brought with him of his own accord and which has not been summoned by the defendant. This kabinnama has not been relied upon, and is being produced today for the first time. Since it is not a public document and the possibility of its being forged is there, permission to produce it cannot be given."

It is this order which is challenged in the petition for revision which is before me.:‑

The learned counsel for the petitioner contends that if legal representatives of a deceased plaintiff are not brought on the record within 90 days of the death of the plaintiff, the suit abates. He argues that if the facts regarding the number and identity of the legal representatives of the deceased plaintiff, as asserted by him, are correct, all the legal representatives of the deceased plaintiff have not been brought on the record within the period permitted by law and that accordingly the suit has abated. He contends that if by giving a wrong decision on this question a Court gives itself the jurisdiction to proceed further with the suit, that wrong decision can be set aside in revision, because it affects the jurisdic tion of the Court. On this is based the argument that the refusal to accept a document which would have shown that the suit had abated, is a matter affecting the jurisdiction of the Court.

8. The learned counsel urges in the alternative that in any case, the act of refusing to accept the document in evidence was arbitrary, and, therefore, must be regarded as having been per formed with material irregularity in the exercise of jurisdiction. He contends that the only requirement in the Code of Civil Procedure for putting in a list of documents on which reliance is placed is at the stage where the suit is instituted, and there is no require ment with reference to issues that may arise subsequently that a list of reliance should be put in. He further contends that there is no requirement in the Code of Civil Procedure that it should be mentioned in the summons that a witness should bring a particular document with him. He argues that a witness is competent to produce any document from his possession while he is in the witness‑box whether notice has or has not been given or whether it has or has not been included in the list of reliance provided it relates to an issue which was not in existence at the time when the suit was instituted and has arisen subsequently. On this basis he argues that in so far as the learned trial Judge refused to allow the witness to produce a document which he says would have showy. that Mst. Karam Begum alias Fazlun -Nisa was married to the deceased plaintiff, he has acted with material irregularity.

9. As I understand the procedural provisions relating to the production of documentary evidence, the intention is that all documents on which a party intends to rely should be produced (if they are in his possession), or disclosed (if they are not in possession) at the earliest opportunity. A document which is not produced or disclosed at the earliest opportunity may be received in evidence, only if, for some sufficient reason, the Court allows it to be received. That, I take to be the real intention and meaning of the provisions in Order VII, rules 14, 15, 16, 17 and 18, and in Order XIII.

10. The learned counsel for the petitioner urges that Order VII, rule 14 is applicable only to the stage when the plaint is instituted. From this he infers that documents, the question of relying on which does not arise at the time of instituting the plaint, may be produced at any time, without notice or warning. Even if it is assumed that the language of rule 14 of Order VII restricts the application of that rule to the position existing at the time when the plaint is put in, I do not think that the inference sought to be drawn, necessarily follows. If no specific provision in this behalf has been made in respect of issues which might arise after the plaint is put in, why should it be assumed that the Court is under an obligation to receive in evidence whatever document might come out of the pocket of any party or witness, without previous warning or notice Why should it be assumed that the reasons, on which the requirement that in relation to documents on which reliance is to be placed, as full a disclosure should be made at the earliest opportunity as is possible in the circumstances, are any less applicable at a subsequent stage than they are at the initial stage The whole argument of the learned counsel is dependent on these assumptions being made, because if they are not made, on what is the contention based, that the trial Judge was powerless to say a document which had not been mentioned at any earlier stage, in spite of the fact that there were occasions on which it could and should have been mentioned, should not be received in evidence

11. On the contrary, I think there exist grounds for making the opposite assumption. An application to replace a deceased party by his legal representatives, is the starting point of a procedure for the determination of a question unrelated to the merits of the claim in the original suit. Though arising out of a suit already instituted, it is in fact a distinct and a separate proceeding. Is it not, therefore, covered by section 141 of the Code If that view is taken, would not the provisions relating to disclosure and production of documents bear the same relation ship to applications and replications for bringing legal representa tives on the record, as they do, to the plaint and written statement And even if section 741, is not held to be applicable‑--this point not having been argued adequately at the hearing before me, I do not decide whether section 141 is or is not applicable in terms‑is not the fact that it exists, a reason for making the assumption, that a Judge could not be debarred from taking a step which is contrary to the spirit of the provisions of the Code

12. There is another assumption underlying the contention of the learned counsel, regarding the correctness of which I have grave doubts. His contention is that unless the legal representa tives have been brought on the record within the time prescribed, the suit abates. That would mean that if an application giving the names of all the persons who are ultimately found to be the legal representatives were to be presented within the specified time, but the decision in that behalf could not be reached during that time, according to the learned counsel, the suit would abate. He contends that even if that extreme position is not taken, the minimum requirement to save the suit from abating is that an application containing the names of all those who are ultimately found to be the legal representatives, should have been made within the specified time. According to him, if even one person who should have been mentioned in the list is not included in the list within that time, the suit must, of necessity, abate on the expiry of that period.

13. Now that is not how I look at the provisions of Order XXII. Those provisions‑like all other provisions of the Code are intended to secure the ends of justice, not to defeat those ends. No provision of the Code is to be regarded as a trap for the litigants; as if a game of chess were being played in which the consequences were related only to the moves made during the game, and where the playing of the game was its own end. The provisions of the Code are ultimately related to a fair trial of the merits of the conflicting claims of the parties, and all moves with their own fixed consequences, are subservient to that purpose. These provisions of Order XXII with which we are concerned, deal with cases of the death of a party; where the cause of action transcends the death. In such circumstances, if the death is that of a plaintiff, his legal representatives may continue the action, and if the death is that of a defendant, the action may be continued against his legal representatives. In the present case, it is the plaintiff who died. The suit of the plaintiff was for redemption of a mortgage i.e., that if he succeeded on the merits of his claim, the defendants would relinquish the occupation of the mortgaged property on being paid the amount of money due on the mortgage. It is a matter of no concern to the defendants, who pays the money in place of the original plaintiff, and who occupies the property in his stead after his death, if on the merits of the claim put forward in the plaint, the decision is given against them. The only legitimate concern of the defendants could be that they might not later be account able to someone else who is left out now, but that is adequately protected by other provisions of the Code particularly by section 11. Yet it is contended on their behalf, that the law has given them the right to side‑track the real issue, by, starting an interminable controversy whether the application by those who made the application, exhausts all the legal representatives or not. It was nearly three‑and‑a‑half years ago that the application was made. During this time the defendants have continued to remain in possession, while matters other than the merits of the case‑matters which have nothing whatsoever to do with the merits of the claim‑are being hotly contested. Is this result really con templated by the provisions of Order XXII I think not.

14. The relevant portion of the provisions applicable to the situation in this case reproduced below‑

Order 22, rule 3 (1). "Where . . . . a sole plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit."

15. It is to be noticed that the real purpose of this rule is put forcefully in the concluding portion that the trial Court "shall proceed with the suit"; the death of a plaintiff when the right to sue survives, is not going to be allowed to hold up the proceedings. It will further be noticed that in order to enable itself to proceed with the case, as it is bound to do, the obligation to make the legal representative of the deceased plaintiff, a party, has been put on the Court by the words " . . . . . the Court . . . . shall cause the legal representative . . . . to be made a party." It is significant, that the only onus on someone other than the Court, placed by this rule, is contained in the words "on an application made in that behalf." In the context, it must mean, "an application made by a person who claims to be a legal representative." The use of the singular number seems to me to carry a special meaning. If a person makes an application that he is a legal representative, the only issue that is contemplated by this rule is whether, that person is or is not a legal representa tive. The issue whether someone else also is or is not a legal representative, does not appear to me to be contemplated. If, therefore, a person makes an application claiming that he is a legal representative, the Court must decide whether his claim is right or not, if it is, the Court is under an obligation to make him a party and to proceed with the suit. There may be other legal representatives. When any of them applies, the Court will, subject to the law of limitation, decide in respect of each appli cant whether he is or is not a legal representative of the deceased. If one legal representative does not apply, it cannot be a ground for depriving the other legal representatives of their rights, and for vesting rights in the opposite‑party. The only consequence of it apparently would be that the legal representative who does not e apply and is not made a party would not be entitled to any rights or subject to any liabilities ensuing from that suit.

16. That is how this matter seems to me. But learned counsel for the petitioners has cited some cases in which a contrary view appears to have been taken. I, therefore, refrain from deciding this point finally in this case. Nor does it seem desirable that I should further delay this already over‑prolonged side issue by making a reference to a larger Bench on the question whether if any of the legal representatives of a deceased plaintiff be anxious, eager and able effectively to proceed with the cause of action, and for that purpose makes an application within the prescribed period, the suit would nevertheless be deemed to have abated, if it is discovered after an enquiry, that someone else also was a legal representative of the deceased plaintiff, but had not applied to be made a party within that period The real question o before me is whether the trial Judge did something, in refusing to accept in evidence the document that came out of the pocket of a witness without any previous warning or notice, which was either in excess of his "jurisdiction", or materially irregular in the exercise of his jurisdiction. I am of the opinion that he did not.

17. No case for interference under section 115, Civil Procedure Code, having been made out, this petition is dismissed with costs.

K. B. A./A. H. Petition dismissed.

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