SYED HAMID ALI SHAH J. --- The petitioner is aggrieved of the order dated 15.4.2005 of learned Civil Judge, Lahore, whereby the application filed by plaintiffs/respondents No. 1 and 2, under order XII, Rule 8, C.P.C. Read with Articles 76 & 77 of the Qanun-e-Shahadat Order for permission to lead secondary evidence, was accepted.
2. Succinctly, respondents No. 1 and 2 had brought a suit for decree for specific performance of the contract. It was maintained that respondents No. 3 to 13 had contracted to sell 156 acres of land located in Mauza Mehdipur, Tehsil Cantt, District Lahore which, hereinafter referred to the suit land, through an agreement to sell dated 24.5.20C3 to respondents No., 1 and 2. It was groused that respondents No. 3 to 13 having undergone dishonest change of mind had refused to execute sale- deed in favour of respondents No. 1 and 2 and instead had alienated the disputed land in favour of the petitioner who had been arrayed as defend-int No. 14. The. Suit was resisted. During the pendency of the suit the petitioner herein moved an application under Order XI, Rule 14, G.P.O. For the production of original agreements dated 24.5.2003 and 10.6.2003, mainstay of respondents No. 1 & 2's case. The application filed under Order XII, Rule 14, C.P.C. Was resisted by respondents No. 1 &.
2, who admitting the documents in their possession and custody took the stance that those documents would be produced at the proper time.
3. Respondents NO. 1 and 2 instead of arguing the above-referred application, served a notice upon respondents No. 3 to 13 for the production of the aforesaid documents under Order XII, Rule 8, C.P.C., and on the failure of respondents Nos. 3 to 13 to produce the aforesaid documents, they moved an application under Order XII, Rule 8, C.P.C. Read with Articles 76 & 77 of the Qanun-eShahadat Order, 1984 for the production of photocopies of those documents as secondary evidence. It was maintained that in the list of documents annexed with plaint under Order VII, Rule 14, C.P.C., it was specifidally mentioned that those documents were in possession. Of respondents No. 3 to 13. It was further maintained that the production of the aforesaid documents was essential for the just and effectual disposal of the suit. It was poihted out that respondents No. 3 to 13 had not produced the documents in spite of service if notice. Thus prayer was made for permission to lead secondary, evidence to prove the documents, under reference. The petition was resisted by respondents No. 3 to 13 and the petitioner herein. Learned Trial Court, accepted the application and allowed the prayer therein for leading secondary evidence, vide order dated 15.4.2005. Feeling aggrieved, the petitioner has come up. In revision petition.
4 Learned counsel for the petitioner has mainly contended that earlier, in reply to the application of the petitioner for the production of the documents, respondents No. 1 & 2 had adopted the plea that those documents would be produced at the proper time and as such respondents No. 1 and 2 should not be permitted to turn around and seek permission to lead secondary evidence to prove these documents. It was contended that the documents in question, were forged and the execution thereof was denied, therefore, production of these documents in original is the essential requirement. Learned counsel while referring to the case of ErnmanueleGrech v. Antonio Grech and others, (PLD 1952 P.C. 155) has contended 'that secondary evidence is only permissible, when proof of execution of document is given and also it's subsequent loss. Learned counsel has thus contended that learned Trial Court committed material irregularity in permitting respondents No. 1 and 2 to lead secondary evidence. Learned counsel has emphasized that secondary evidence can he allowed if loss of original is proved; person in whose possession the document is shown is beyond the reach of the Court and is not subject to the process of Court. It was iddeu that no such circumstances existed, therefore, secondary evidence cannot be led. To support this contention, learned counsel relied upon the cases of Sardar Bakhsh v. Mst. Maqsood Bibi (PLD 1994 Lahore 452) and "Mutali v. Manzoora and another" (PLD 1994 Lahore 298). Learned counsel for respondents No. 3 to 13 has supported contentions of learned counsel for the petitioner.
5. Inversely learned counsel for respondents No 1 & 2, has argued that from the very beginning, respondents No. 1 and 2 has adopted the plea that these documents were not in their possession and respondents No 3 to 13. Possessed the same in their custody which fact reflected, in the listof reliance annexed with the plaint. Learned counsel has cogently emphasized that if these documents were in the custody of respondents No. 1 and 2, there was no necessity to move application for seeking permission to lead secondary evidence.
Learned counsel vehemently argued that no revision is competent against an order qua admitting or declining to admit a document. Learned counsel in support of this contention placed reliance on the case of Nawabzada Malik Habibullah Khan v. The Pak. Cement Industries Limited and others (PLD 1969 SCMR 965). It was. Argued that no appeal, against such order is provided by law, and in this respect referred the case of Kanwal Nain and 3 others v. Fateh Khan and other (PLD 1983 S.C.
53). Learned counsel went on to argue that impugned order/interlocutory in nature, neither affects the merit of the case nor jurisdiction of the Court, cannot be made ground of interference in appeal, within the contemplation of Section 99 C.P.C. The order impugned, not being an appealable order, can only be considered and examined at the. Time when final decision is assailed, as envisaged in Section 104, C.P.C.
6. I have heard the learned counsel for the parties and perused the material available on the record.
7. An application for secondary evidence has to be tested on the touchstone of Article 76 of the Qanun-eShahadat Order, 1984. According to the contents of this Article, secondary evidence can inter alia be led if the original document is shown or appears to be in the possession or power of the person against whom the document is sought to be proved. In the case in hand the documents are agreements to sell allegedly executed by respondents No. 3 to 13, in favour of respondents No. 1 and 2, such documents in the case of dispute are to be used against respondents No. 3 to 13. While contesting the application of the petitioner for production of original, agreements, respondents No. 1 and 2 in their reply, have admitted, having the possession of these documents. They undertook to produce these documents, at proper time i.e. At the time of recording of evidence. Subsequently, respondents No. 1 and 2, took a destructive plea to their earlier stance, while maintaining that original documents were in possession of the defendants No. 1 to 13. The justification in this respect was given that plaintiffs had mentioned the document being in possession and custody of defendants No. 1 to 13, in the list of reliance under order VII, Rule 14, C.P.C. Perusal of list of reliance submitted by respondents No. 1 and 2, reveals that plaintiffs have mentioned four documents in column No. 1 being in custody of defendants No. 1 to 13 which include the revenue record, i.e. Seven copies of "Register Haqdaran Zamin" two copies of "Register Roznamcha Waqiati", besides agreements dated 15.4.2003 and 10.6.2003. Plaintiffs in column No. 3 of list of reliance has inco, porated that documents mentioned in column's No. 1 and 2 are in possession of defendants No. 1 to
13. Column No. 3 is filled vaguely and documents are not mentioned in it. Only the reference.Of documents mentioned in the (above) columns No. 1 and 2 has been given. Revenue record is a public record. The Registers are maintained and kept by Government/Revenue Department and not by the plaintiffs. Entries in column No. 3 of the list of reliance are not specific but vague, as against the admission of respondents No. 1 and 2 in their reply to application under Order XII, Rule 8, C.P.C. Contents of list of reliance which the petitioner has submitted with his written statement reflects the possession of agreements under reference, with the plaintiffs i.e. Respondents No. 1 and
2. Respondent No. 1 and 2, have nowhere stated in their plaint, that agreements are not in their possession and are in the custody of defendants No. 1 to 12. The possession of documents, under reference cannot be presumed to be with defendants No 1 to 13, for various reasons. Firstly no such stance is taken in the plaint, secondly a vendee (after execution of agreements) keeps such documents and, lastly respondent No. 1 and 2 have categorically admitted the possession of these documents and undertook to produce these documents a proper time. The contents of list of reliance have no precedence over admission of the plaintiffs, for the admission is later in time while contends of list are vague 8 Respondent No 1 and 2 have failed to prove either the loss of original documents, or the possession thereof with the defendant No. 1 to 13. Plaintiffs/respondents No. 1 to 13 have not set up their stance, in the plaint that agreements after their execution were delivered to defendants No. 1 to 13 and are in their custody/possession. The question arises that the permission to lead secondary evidence was rightly granted by learned Trial Court?
9. An agreement to sell: is the paramount document , on the basis of which, the suit for specific performance, rests. Failure to produce original is fatal to a plaintiff, who seeks it's performance. The defendants have denied the execution of agreements and have claimed that theses are forged documents. It is a settled law that evidence-cannot be led, beyond the scope of pleading. The plaintiffs have not pleaded that documents are in possession of defendants No. 1 to 13, so they cannot be allowed to lead evidence to this effect.
10. Secondary evidence is an exception to general rule and it's object is to meet the genuine hardship of a litigant, only in the circumstances when better evidence is absent and cannot be adduced in normal circumstances. Loss of original documents is an essential requirement for permission to lead secondary evidence. Honorable Supreme Court of Pakistan in the case of Mst.
Khurshid Begum and 6 others v. Chiragh Muhammad (1995 SCMR 1237) considering the question of permission to lead secondary evidence, to prove agreement to sell and receipt relating to payment of earnest money, in a suit for specific performance of agreement, has hold that loss of document if not proved, secondary evidence becomes valueless. The Apex Court was of the view that even in case where evidence is produced simultaneously on the questions of foss of document secondary evidence, the precedence is given to first question. It has been observed in the case of Sardar Bakhsh v. Mst Maqsood Bibi (PLD 1994 Lahore 452) that every deed being best evidence and it's non-production will necessarily raise a suspicion in the mind of the Court. Great care and circumspection would be needed in order to decide, whether there has been a bona fide loss.
11. Adverting to the objection of learned counsel for the respondent that order impugned in the revision is not an appealable order and revision against it is not competent for the reason that such order can be assailed alongwith the main decision, in appeal in terms of Section 104, C.P.C. A specific issue, of identical nature, came under consideration of this Court, where the petitioner was allowed to dead secondary evidence for proving a document, ignoring the determination of existence of document sought to be proved, in the case of Muhammad Afzal v. Abdul Karim and others (1984 CLC 1406) and it was held that revision is competent against the order of Trial Court.
Learned Full Bench of West Pakistan High Court in the case of S. Zafar Ahmad v. Abdul Khaliq (PLD 1964 (W.P.) Karachi 1.49) has laid down certain parameters/guiding rules of practice for the exercise of powers u/s. 115, C.P.C. It was observed that while exercising its jurisdiction, the Court has taken a: procedural step which is contrary to a mandatory provision of the law, or has omitted to take a procedural step which is required by a mandatory provision of the law to be taken, is amenable to the revisional powers of the High Court u/s. 115, C.P.C., It has been held by the Apex Court in it's recent decision in the case of Nestle Milkpak Limited v. Classic Needs Pakistan (Pvt.)
Limited and 3 others (2006 SCMR 21) that expresion 'case decided' is not necessarily confined to final order, rather it may, in the peculiar facts and circumstances of the case, relates to an interlocutory order passed at any stage of proceedings, including an interim order requiring application of mind. A similar view has been taken by the Apex Court in the case of Pakistan Fisheries Ltd., Karachi_ and others v.
United Bank Ltd. (PLD 1993 S.C. 109,) that expression 'case decided' can be construed as a decision given in respect of, any state of-facts after judicially considering the same, which need not necessarily dispose of the whole matter in suit, pending before a Court subordinate to the High Court . In view of peculiar circumstances of the instant case, interference at revisional stage cannot be declined as permitting the plaintiffs/respondents No. 1 and 2 to lead secondary evidence. Qua a document which they have categorically admittea in their possession besides the denial of it's execution by the petitioner, will result. Into miscarriage of justice. Order impugned suffers from legal infirmity, is not sustainable.
12. For the foregoing, this revision petition is allowed and the impugned order of learned Court dated 15.4.2003 whereby the Court permitted respondents No. 1 and 2 to adduce secondary evidence to prove agreement to sell, is set aside. No order as to costs.
Civil revision .