C.M.A. No,1666 of 2004.
' This is an application under Order XIII, rule 2, C.P.C. Made by the defendant seeking filing/production of the photocopies of the documents mentioned therein. It has been pleaded in the application that the original of these documents is in custody and possession of the plaintiff.
The application was opposed by the plaintiff and a counter-affidavit was filed by them. However, in the said counter-affidavit it has not been disputed that the plaintiff is not in custody and possession of these original documents. In the counter-affidavit besides other grounds the application was opposed on the ground that it has been made at a belated stage and therefore, is not maintainable in law.
2. Mr. H.A. Rahmani, learned counsel for the defendant, contended that in paragraphs 13.3 and 13.4 of his written statement, the defendant has referred to the documents which are sought to be produced through the application. He further contended that in the column of "documents relied upon" of the written statement, the defendant has relied upon the books, reports and journals, which includes these documents.
3. Mr. Rehmani next contended that in paragraph 3 of the affidavit of the defendant filed in support of the application, it has been pleaded that the various reports, opinions of Experts in regard to natural wastage/ shortage in handling the movement of rice at various stages and conditions occurs which was inevitable and such reports and opinions are in custody of the plaintiff. The defendant has further pleaded in his said affidavit that he has referred the documents sought to be produced and it was expected that the plaintiff will produce the original reports and opinions with the affidavit-in-evidence of his witness for fair adjudication of the controversy in the suit.
Under these circumstances, the defendant in paragraph 5 of the said affidavit has pleaded that the application under Order XIII, rule 2, C.P.C. Was made to allow the defendant to produce the documents referred to therein and confront the witness of the plaintiff with such document.
4. In the affidavit it was further pleaded that the defendant has served a notice upon the plaintiff under Order XII, rule 8, C.P.C. Read with Article 77 of the Qanun-e-Shahadat and the plaintiff's witness in paragraph 19 of his affidavit-in-evidence has denied the averments made in the written statement in toto. Mr. Rehmani contended that the instant application was made in these circumstances to protect the interests of the defendants.
5. Mr. Rehmani submitted that the documents sought to be produced have direct bearing on the issues involved in these proceedings. He submitted that the plea of the defendant in the written statement was that nothing was due against him. Mr. Rehmani contended that as per the reports and opinions of the experts wastage/shortage in handling the movement of rice at various stages and condition is calculated at 3% and the defendant's case is that the wastage/shortage is less than 3%.
6. The learned counsel has submitted that issue involved is quantum of wastage/shortage of rice during its movement. The documents sought to be produced are the opinion and report of the Experts in regard to wastage/shortage during the movement of rice. Mr. Rehmani submitted that the application of this nature can be made at any stage of the proceedings and in support of his contention he has relied upon the case of Mutali v. Manzoora reported in PLD 1994 Lah. 298 and the case of Walya v. Zaiban reported in 1984 CLC 1385 where it has been held that if an application of the nature is made prior to recording of the evidence it would not be treated as an application made at a belated stage.
7. It was further contended by the learned counsel for the defendant that the application of the nature or application in regard to the production of documentary evidence under Order XIII, rule 2, C.P.C. Is to be considered liberally. In support of his contention he has relied upon the case of United Bank Ltd., Karachi v: Shabbir Ahmed Abbasi reported in PLD 1981 Kar. 255 and the case of Muhammad Hussain v. Settlement Commissioner, Lahore reported in PLD 1984 Lah.
139.
8. The learned counsel for the defendant further contended that in his affidavit in support of the application the defendant has outlined the necessity for making the application. He submitted that the settled principle of law in regard to allowing such an application is that the documents sought to be produced has to be a genuine document and relevancy for the purposes of resolving controversy involved in the proceedings. He submitted that the provisions of Order XIII, rule 2, C.P.C.
Would not be used to penalize a party for producing the documents which are otherwise relevant but have not been produced along with the pleadings or at the time when the issues were framed.
In support of his arguments he has relied upon the case of Nawab Bibi v. Additional District Judge reported in PLD 1993 Lah. 492; case of Makhdoom Ahmed Mahmood v. Fouzia Hussain reported in 1995 MLD 1164 and the case of Muhammad Hanif v. Parsan Bibi reported in 1996 MLD 1158.
9. As against this, Mr. Syed Mamnoon Hassan, learned counsel for the plaintiff has submitted that the document sought to be produced were neither relied upon nor copies of those documents were filed with the written statement. His contention was that no sufficient cause for producing the documents has been pleaded in the application. The third contention of the learned counsel was that as the documents sought to be produced were internal documents of the plaintiff, which were subject to approval of the Government and therefore, it cannot be allowed to be produced by the defendant.
10. The next contention of the learned counsel for the plaintiff was that the issues in these proceedings were settled on 15-9-1997 but the defendant has not produced/filed these documents. Subsequently, plaint was amended and additional issues were framed and settled, even at that stage the documents were not filed. Now, once the affidavit-in-evidence of the plaintiff was filed, the defendant cannot be allowed to file and or produced the documents mentioned in this application. In support of his contention he has relied upon the case of Rab Nawaz v. Muhammad Amir reported in 1999 SCMR 951 and Allah Bakhsh v. Fateh Bibi reported in 1994 SCMR 1945.
11. I have heard both the learned counsel and perused the record. The objections that the documents sought to be produced were not filed by the defendant with his written statement and there was no mention of such document in the column of "documents relied upon" by the defendant are untenable in law. Under the law of pleadings, a party is required to plead the material facts and there is nothing under the Civil Procedure Code under which a party is obliged to file copies of documents along with the pleadings. Therefore, non-filing of such documents with the written statement by the defendant was immaterial. I have noticed that in paragraphs 13.3 and 13.4 of the written statement, reference has been made to the documents of the plaintiff and even the column "documents relied upon" of the written statement refers to the report/books and journals, though such column was unhappily worded. Therefore, even this objection of the learned counsel for the plaintiff was not in conformity with the record.
12. The second objection raised by Mr. Mamnoon Hassan was whether sufficient cause for non-filing of the documents earlier has been shown in the application.
13. I have perused the affidavit of the defendant filed in support of this application. In. Paragraph 3 thereof he has specifically pleaded that the plaintiff, which is a public functionary, is in custody and possession of various reports and opinions, which reflect the natural wastage/ shortage in handling the movement of rice at various stages and conditions. The wastage/shortage in movement of 'rice according to such reports was inevitable. The issue involved in these proceedings is that of wastage/shortage of rice. Therefore, the documents sought to be produced were material for the purposes of resolving the controversy between the parties.
14. It is unfortunate that the plaintiff which is public functionary have overlooked their obligations while contesting the matter in Court are required to place before Court relevant material in their custody to enable the Court to reach just conclusion. It is expected that the public functionaries should discharge their obligations in a fair manner failing which the public would lose confidence in them. The officials who wilfully withhold material documents in custody of the organization should be taken to task by the high-ups as these officials in discharge of their duties which they owe to the public are bound to place before the Court all the material, which will restore confidence of the public on one hand and would help the Courts in reaching just conclusion on the other hand.
15. Therefore, once the affidavit-in-evidence has been sworn by the witness of the plaintiff, who was in custody of these documents and who has denied the contents of the written statement, even after service of legal notice under Order XII, rule 8, C.P.C. Read with Article 77 of the Qanun-e- Shahadat, defendant was justified in making the application of the nature in the given circumstances.
16. The third objection of the learned counsel for the plaintiff was that the documents sought to be produced were the internal documents of the plaintiff and, therefore, cannot be produced and or filed by the defendant. The plaintiff's counsel has not claimed that these documents E are privilege documents. In order to claim privilege law requires specific procedure, which is not adhered to, therefore, such documents cannot be treated as privilege document. The next contention of Mr. Mamnoon Hassan that the defendant has not obtained the copies of the documents sought to be produced lawfully. A party cannot be compelled to disclose the source for obtaining copy of any document as has been held by the Honourable Supreme Court in the case of Bisvil Spinners (Pvt.)
Ltd. v. Pakistan reported in PLD 1992 SC 96. The plaintiff has not disputed the authenticity of the documents, therefore, the objection in regard to lawful possession of the copy of the document was insignificant in view of the judgment of the Honourable Supreme Court.
17. In regard to the judgment cited by the learned counsel for the plaintiff on the issue of scope of Order XIII, rule 2, C.P.C. To substantiate his arguments. In the case of Allah Bakhsh v. Fateh Bibi reported in 1994 SCMR 1945, it has been held by the Honourable Supreme Court that if a document is in the custody of the person who has neither pleaded nor relied upon such document then the trial Court may decline the production of such document at a belated stage. The present case is on distinct facts as the original of these documents are not in custody of the defendant and even otherwise the plaintiff was put to notice in terms of Article 77 of the Qanun-e-Shahadat, whereafter the plaintiff through affidavit-in-evidence has denied the averments of the written statement, which made reference to these documents. The documents sought to be produced were referred to in the written statement. The evidence in these proceedings was yet to start. The judgment of the Honourable Supreme Court in the foregoing circumstances was inapplicable.
18. The other judgment of the Honourable Supreme Court in the case of Rab Nawaz v. Muhammad Amir reported in 1999 SCMR 951, relied upon by Mr. Mamnoon Hassan, it was held by the Honourable Supreme Court that documentary evidence of every description in possession of authority or power on which they intended to rely should be filed in Court subject to the exceptions provided under Order XIII, rule 2, C.P.C., which lays down that no documentary evidence in possession or power or any party which should have been but has not been produced in accordance with the requirement of Rule 1, shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for non-production thereof and the Court receiving any such evidence shall record the reasons for so doing. In other words, the Honourable Supreme Court while interpreting the provisions of order XIII, rule 2, C.P.C.
Has held that if a party shows sufficient cause for non-production of a document, the Court on satisfaction can allow such an application. In the case in hand, admittedly, the documents sought to be produced are the copies of the documents which are in custody of the plaintiff and the plaintiff on filing of affidavit-in-evidence of their witness has not denied/disputed the authenticity of these documents. Instead the plaintiff denied the averments of the written statement. Therefore, the principle laid down by the Honourable Supreme Court in the case of Rab Nawaz v. Muhammad Amir reported in 1999 SCMR 951 would not be attracted to cover the case in hand as non- production of such document would deprive the defendant from confronting the documents with the witness of the plaintiff. To my understanding of law, the defendant has made out sufficient cause.
19. The provisions of Order XIII Rule 2, C.P.C. Are an exception and that has to be interpreted liberally once the Court is of the opinion that the documents sought to be produced are the relevant documents for the purpose of resolving the controversies between the parties and the documents sought to be produced are relevant in this regard, which would resolve the controversy between the parties.
20. I find that the documents sought to be produced are material documents and their non- production would definitely defeat the cause of justice. The rules and procedure are intended to advance justice rather than to obstruct it and objection in regard to delay could hardly be a ground to deny a party to produce documents under Order XIII Rule 2, C.P.C., which documents were otherwise relevant in resolving the controversy between the parties. The object of Order XIII Rule 2, C.P.C. Is to exclude forged documents and expedite trial but it is never intended to apply this provision to deny a party to produce genuine documents which have the effect of resolving controversy between the parties on the ground that such an application has been made at a belated stage. In view of the aforesaid discussion, I allow this application directing the defendant to file photocopies of the documents referred to in the application within two weeks from today where after the matter be posted for evidence of the plaintiff.