Civil Miscellaneous No,226/B of 2007 ' SYED HAMID ALI SHAH, J.--- The evidence of the parties, in this suit, is being recorded through Local Commission. D.W.1 (Amjad Ali, Area Manager) produced documents at serial Nos.2 to 6, 8 and 9, whereupon an objection was raised by plaintiff that these documents cannot be exhibited.
Through order dated 7-5-2007, plaintiff was directed to file proper application. Instant application is being filed for a direction to the Local Commission, to endorse these documents as mark, instead of endorsing them as exhibits. Defendant has contested this application through filing it's reply, wherein the assertions made in the application, are controverted and various' preliminary objections have been raised.
2. It is contended by learned counsel for the applicant/plaintiff, that after framing the issues, the parties were directed, vide order dated 11-4-2005 to produce copies of the documents, on which they rely, within three weeks. Subsequently issue No,4 was amended ow 10-5-2005 and parties were again directed to exchange lists of documents and opt for procedure of discovery of documents, if they so wish. Defendant failed to file documents at the time of framing of issues or within extended time. The documents have been produced along with the affidavit of D.W.1 on 15- 12-2006. Learned counsel has submitted that defendant as per list of reliance under Order VI, rule 14, C.P.C., attached and described only 14 (Fourteen) documents. He added that documents, which have not been relied upon or have not been filed under Order XIII, rule 1, C.P.C., cannot be received subsequently in evidence, as envisaged in rule 2 of Order XIII, C.P.C. The evidence produced, ignoring provisions of Rules 1 and 2, is required under law to be rejected under rule 3 (ibid). It is submitted that documents Exh.D.1/2 to Exh.D.1/VII are irrelevant and have no nexus with the controversy raised in the suit. Learned counsel for the respondent (defendant) on the other hand, has submitted that objection regarding endorsement of documents at this stage, is premature and these objections can be validly raised at the time of final arguments. Learned counsel added that procedure adopted by the local commission, is exactly the same, as has been adopted in the course of recording of evidence of applicant. It was submitted that local commission has adopted the procedure, which is applicable, for tendering the documents in evidence. The objections of the applicant, had been recorded by the commission and the resolution of the objections, has been left to the Court for it's decision at the time of final arguments. It is submitted that documents, sought to be produced in evidence, are relating to subsequent events and for that reason, they were not mentioned in the list of reliance, at the time of filing of the application for leave to defend the suit. Learned counsel went through the detail of various documents and submitted that these documents relate to loan disbursed to the applicant and are required to prove the factum of misappropriation of shredded steel scrap. These documents are produced to prove that L.C.
Commission, L.C. Opening charges and refund of letter of credit margin, was duly accounted for.
Learned counsel summed up his arguments with the contention that documents under reference, mostly relate to judicial proceedings and as such, their genuineness is not doubted and such documents can be received in evidence.
3. Heard learned counsel for the parties and record perused.
4. The applicant has sought indulgence of this Court, on receipt of documents by the commission, which were statedly not listed in the list of documents/reliance. Late receipt of the documents, according to learned counsel, is fatal and not permissible, I am not persuaded to agree with the above prime contention of Rana Muhammad Sarwar, learned Senior Advocate. It has consistently been held by the superior courts that the object of procedure provided in Order XIII, CPC, is to prevent fraud and not to penalize a party, which produces documents at a late stage. The Court, in the course of recording evidence, while permitting or refusing to permit documents, is to consider:- -
(i) Whether there exist good grounds for failure to enter the documents in the list?
(ii) Is there any doubt, as to the genuineness of the documents sought to be produced?
(iii) Will the other side be prejudiced that it had no timely notice of these documents?
(iv) Has the other side been deprived of opportunity to rebut the evidence?
5. Documents, genuineness thereof is beyond doubt, which were not listed or are produced at a late stage, ought not to be set out of evidence. Bar is not absolute and public documents can be admitted even at late stage. It has been held in the cases of Flt. Lt. (Retd.) Mumtaz Khan v. Mst.
Ammtul Batool 1984 CLC 3462 and (Smt). Manorama Srivastava and another v. (Smt). Saroj Srivastava KLR 1991 CC 160 that documents filed with the affidavit for cross-examination of witness, can be received in evidence, though not listed in the list of documents. Provisions of Order XIII, rule 2, C.P.C. Have been held in the case of Muslim Commercial Bank Limited v. M.M. Traders and others 1996 CLC 833, not applicable in the same strict sense, as are applicable to the plaintiff. Since the defendant is producing the documents in question, photo copies thereof had already been attached with the affidavit of witness, therefore, provisions of rules 2 and 3 of Order XIII, C.P.C., cannot be applied with full vigor.
6. Certified copies of Court proceedings/public document have the presumption of genuineness under Article 91 of Qanun-e-Shahadat Order, 1984. Statement of account has the presumption of correctness, attached to it under section 4 of the Banker's Book Evidence Act, 1891. Copy of letter of credit and associated documents find it's mention in list, filed under Order VII, rule 14, C.P.C. The documents can be received and can legally be endorsed as exhibits.
7. Examination of witness through commission, is the task assigned by the Court to such person.
The person appointed as commission, has to record the evidence, according to procedure laid down under law and his powers are not restricted to recording of oral evidence only. He, in the course of recording the evidence, has the power to receive documents, make endorsement thereon as mark or exhibit; as the case may be, record objections of the parties on these documents and disallow production of document, which is inadmissible or irrelevant. It is unhealthy trend that in the course of recording of evidence, every document is marked without properly receiving or endorsing it as exhibit, despite being admissible in evidence. It is unnecessarily left to the Court to decide, for the fate of document, produced in the course of recording of evidence. It is the primary responsibility of the commission to record evidence vigilantly and receive document with proper endorsement, either as mark or exhibit, as the case may be, according to the prescribed procedure. The commission is duty bound to record objections on the document received, if raised by the other side, so that the Court should decide these objections, when final, arguments are heard. Applicant can still plead at the conclusion of trial that documents received in evidence and endorsed as exhibit, cannot be read in the evidence, if the same are inadmissible.
Endorsement does not mean that question of admissibility of document has conclusively been considered. As authority for this proposition, reference can be made to the cases of Province of Punjab through Collector v. Rana Hakim Ali and another 2003 M LD 67, Mst. Saffiya Bibi v. Fazal Din and 2 others 2000 YLR 2678 and Muhammad Hand. v. Muhammad Shafique 2000 YLR 2962.
8. For the foregoing, this application has no merit and is accordingly dismissed.