1. ' MS. SOOFIA LATIF, J.---This High Court Appeal under section 3 of Law Reforms Ordinance, 1980, is directed against the judgment and decree dated 15-8-2006 passed by learned single Judge in Suit No,937/2001, whereby the suit of appellant/plaintiff was dismissed.
2. ' The facts which constitute, the background of this appeal are as follows:-- ' The appellant Mst. Anwari Begum along with her family members including her brother-in-law Abdul Rehman (since deceased) migrated to Pakistan at the time of partition and settled at Karachi, a residential house along with three shops, constructed on ground floor, situated at plot No,RC-3/22 (G-11) admeasuring 40 square yards was selected jointly at Jinnah street, Ranchore Lane, Karachi, purchased by the appellant and her brother-in-law Abdul Rehman jointly from one Jag Jivan Lavji in the sum of Rs,3000. The above said property became evacuee property after enactment of Pakistan Administration of Evacuee Property Act, 1957, as the plaintiff and her brother-in-law Abdul Rehman were in possession of said property. Abdul Rehman filed his claim in respect of the said property with the settlement organization of Pakistan, this claim was accepted by the settlement organization of Pakistan and the said property was awarded as compensation and transferred in his name on payment of Rs,11, 288 and necessary entry was made in compensation book issued on 7-12-1960 by the Deputy Settlement Commissioner. It is also the case of appellant that in acknowledgement for appellant's contribution towards payment of the sale price, Abdul Rehman entered into an agreement with the appellant and her miner son Umar Daraz for transfer of half share in the said property, as such, the property was transferred in their names vide PTO No,050088 dated 30-7-1960. Unfortunately the said Abdul Rehman expired and his legal -heirs inherited 50% share in the disputed property. Thereafter, the minor son of appellant Umer Daraz also expired and appellant became the owner of 50% share in property in question.
3. ' According to the appellant after reconstruction of property in question the appellant and respondents handed over 40 square yards space of reconstructed shop/hall to one Ghaffar.
4. Thereafter the respondents in a planed manner have conspired to deprive the appellant of her due share in the property as well as in the rent received from the disputed property, grabbed her 50% share, denied her right and title the appellant has resorted to file the suit.
5. ' The respondents (defendants) have controverted the issues based on facts. They have challenged the maintainability of suit and denied that the appellant has 50% share in the property in question. According to them the appellant and her son Umer Daraz after, attaining of majority sold out their shares to the respondent's predecessor-in-interest Abdul Rehman.
6. ' The learned single Judge framed the issues, the evidence of both parties was recorded on commission.
7. ' On the basis of evidence available on record, the learned single Judge dismissed the suit of appellant, in these circumstances the present appeal has been filed.
8. ' We have heard Mrs. Shiraz Iqbal, learned counsel for appellant and Mr. Ali Lahooti learned counsel for respondent and gone through the record of the case very carefully.
9. ' Mrs. Shiraz Iqbal learned counsel for appellant has assailed the findings of the learned Single Judge on the following grounds:--
(1) That the learned Single Judge has wrongly held that rule of tacit permission on exhibiting the documents cannot be applied in the above case.
(2) That the learned Single Judge has also wrongly held that the suit of appellant for Plot No,G-11, admeasuring 40 square yards to the extent of 50% share is barred by Article 142 of Limitation Act.
(3) That the learned Single Judge also erred in holding that the appellant failed to establish her possession of plot in question before she was accommodated on the top roof of building.
(4) That the findings of learned single Judge are contrary to the facts on record that appellant and her son Umer Daraz surrendered their shares in favour of deceased Abdul Rehman the predecessor-in-interest of respondent through Exh. 13/5.
10. ' In support of her contentions Mrs. Shiraz has relied upon the following case-laws:--
(1) 1983 SCMR 626 (Aswa r Muhammad and others v. Sharif Din. And others).
(2) 1982 CLC 653 (Dr. Hasan Ara and others v. Mian Tajammal Hussain and others).
(3) PLD 1967 Dacca 811 (Naimuddin Sheikh and another v. Moulvi Shahed Ali and others).
(4) PLD 1990 SC 01 (Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi).
11. ' Conversely, Mr. Ali Lahooti learned counsel appearing for respondent has rebutted all the above contentions of learned counsel for the appellant and supported the findings of learned Single Judge, requested for dismissal of appeal.
12. ' Having considered the record of the case and respective contentions of both learned counsel, case-laws cited by the learned counsel for appellant, it appears that in order to substantiate her right in the Plot No, RC-3/22, G-11 appellant's attorney has produced the photocopies of documents as Exh.5/7 to 5/11. Admittedly their production was objected to by the learned counsel for respondent while evidence of appellant's attorney was being recorded by the Commissioner on the ground that these documents were neither filed with the plaint nor were produced along with the affidavit-in-evidence. The learned Single Judge dilated upon the provisions of Order VII Rule 14 and Order XIII C.P.C, declined to consider photocopies of such documents as exhibits and placed reliance upon PLD 2005 Karachi 1.
13. ' Order VII Rule 14 of Civil Procedure Code, postulates that where plaintiff sues upon a document in his possession or power he shall produce it in Court when the plaint is presented. Where he relies on any other documents irrespective of the fact whether such documents are in his possession or not, as evidence in support of his claim, he shall enter such documents in a list to be annexed to the plaint.
14. ' Order XIII Rule 1 C.P.C. Gives the right to the parties to produce all documentary evidence of very description in their possession or power on which they intend to rely, and which has not already been filed in Court and all documents which the Court has ordered to be produced in accordance with Rule 2 of Order XIII C.P.C. The purpose of Order XIII C.P.C. Appeared to be to avid possibility of the parties presenting forged, fabricated and maneuvered documents at late stage of the suit and that the parties should be aware about the documentary evidence and may not be taken by surprise.
15. ' By these provisions of law only those documents can be produced which are in the possession of plaintiff mentioned in the list of documents annexed with the plaint. If the plaintiff fails to produce the same in compliance with the aforesaid provision, he cannot be allowed to produce such documents in the evidence expect with the permission of Court. In the instant case admittedly neither the appellant had filed such document along with the plaint nor any list of documents was annexed with the plaint and affidavit-in-evidence in compliance with the above provisions, in the aforesaid situation she cannot be allowed to produce the same at a belated stage without the permission of the Court. Reference can be made to the case of Muhammad Aslam v. Manager United Bank Ltd. (1990 AJ & K 29), Jamal Din and others v. Additional District & Sessions Judge, Jhang and others (1990 MLD 1934), Mutali v. Nazeeruan (PLD 1994 Lahore 248), American Express Travel and others v. Muhammad Nasrullah Baig and co-accused. (2001 YLR 1185), Jawad Rafat Khan v. Messrs Shabbir Tiles and Ceramics Ltd. (PLD 2005 Karachi-1).
16. ' In view of the dictum laid down in the above cited case laws, we are in full agreement with the observations made by the learned Single E Judge which are based on proper appreciation of law.
17. ' Coming now to the point of photocopies of documents produced by the appellant's attorney, admittedly the appellant's attorney has produced Photostat copies or true copies of documents in the evidence recorded by the Commissioner. No explanation has been furnished by the appellant's counsel either before the learned Single Judge or before us as to why the appellant did not produce the originals of such documents. It is well settled law that documentary evidence must be proved through primary evidence as per Article 75 of Qanun-e-Shahadat Order, 1984 except in so far as the same is excluded under Article 76 of ibid. In the case of Danial Shafqat v. Nasreen (2005 YLR 1185), it has been observed that Photostat copies of documents were received in evidence improperly without the production of their originals and without complying with conditions prerequisite for permitting secondary evidence, the mere consent or omission'to object to the reception of any inadmissible evidence will not be treated as a valid and legal piece of evidence.
18. Similar observations have been made in the cases of Mukhtar Ahmed through legal heirs v.
19. Muhammad Younas and others (2001 CLC 1796), Sher Baz Khan v. Mir Adam Khan (PLD 2002 Peshawar 1), Mehmooda Begum and others v. Additional District Judge and others (2004 YLR 1113), Naik Muhammad v. Bagh Ali (PLD 1987 Lahore 208).
20. ' In the instant case the appellant has miserably failed to prove that her case falls within the exception of Article 76 of Qanun-e-Shahadat Order, 1984 to allow secondary evidence in true photocopies of the documents. In such circumstances the learned Single Judge was justified for not considering/exhibiting the photocopies of documents.
21. ' As noted, while hearing the above appeal, it was noticed by us that the respondent's witness has produced a letter dated 13-5-1978 (Exh.13/9) issued by Additional Settlement Commissioner, Karachi, confirming that the Property bearing No, RC 3/22 (Custodian No, IV A-60) tenement No, G- 11 was permanently transferred in the name of deceased Abdul Rehman son of Habib Hussain vide PTD No, 15384 dated 8-6-1972 and since the document was never challenged by the appellant before any forum; it clearly shows that the appellant had acquiesced into the existence of such title document which she cannot subsequently denied, particularly at belated stage after filing the suit. Silence of appellant for such a consideration period regarding her interest in the disputed property would amount to waiver on their part, thus, she was stopped by her conduct to bring present suit. Reference can be made to the case of Faqir Taj and other v. Mst. Shamsi (2003 YLR 894).
22. ' It is also obvious from the record that the building in question was constructed in the year 1978, all the shops and flats were rented out by the predecessor-in-interest of respondent namely Abdul Rehman, he also retained two flats and nothing has come in the evidence that any flat/shop was given to the appellant, such facts support the contention of respondent that she and her son had surrendered their share in favour of predecessor-in-interest of respondent vide Exh.13/5.
23. ' As regards the issue of limitation, the appellant in para 24 of plaint has alleged that the cause of action has accrued in the year 1978 when the building was constructed. Admittedly in the plaint appellant has sought the relief for declaration possession, partition, mesne profit and permanent injunction. As no limitation period is provided in the schedule of Limitation Act, such reliefs will be governed by Article 120 of ibid. Under this Article the suit for the relief of declaration with prayer for consequential reliefs can be filed within six years from the date when the right to sue accrues and therefore, the suit for such reliefs should have been filed within six years upto 1982.
24. ' As regards the limitation for seeking the relief for possession, it is governed by Article 142 of the Schedule of Limitation Act, 1908, which provides 12 years. As per para.24 of the plaint the cause of action has accrued in the year 1978, the suit was filed in the year 2001 after more than 23 years. No explanation has been furnished by the appellant justifying such delay. According to the contention of learned counsel for appellant the limitation period will start for filing such suit when the appellant was accommodated on the top of the roof of the building but the learned counsel has not disclosed such specific date in the plaint. In her plaint appellant has also taken plea that after migration she had settled along with her brother-in-law deceased Abdul Rehman on Plot No, G-11.
25. Such plea of appellant stands contradicted from the death certificate of her son Umer Daraz (Exh.
26. 13/2) which bears the address of Pankha Lane. Moreover, Exh. 5/9 also bears the same address. We are, therefore, in agreement with the view taken by the learned Single Judge that the suit was hopelessly time bared in respect of reliefs claimed by the appellant in the suit. The case-laws cited by the learned counsel for appellant are totally distinguishable from the facts of present case and none of them furnishes any support in favour of appellant.
27. ' No exception therefore, can be taken to the impugned judgment which is well reasoned and is in accordance with the provisions of law.
28. ' For the foregoing reasons, the appeal was dismissed vide short order dated 20-5-2009, above are the reasons thereof.