The petitioners feeling aggrieved of the order dated 24th March 2009, whereby the application filed by the petitioners under provisions of Order-XIII, Rule 1 & 2 Civil Procedure Code (CPC) was rejected, preferred instant petition with the prayer that order be set aside, and they be allowed to produce the documents. It is their contention that the documents which are required to be produced are essential documents, which were missing, but fortunately discovered during course of evidence, whereupon the petitioners approached the Court for producing the same, but the trial Court without any reason dismissed the application. It is contended that due to the order irreparable loss has caused to the petitioners, and they cannot be deprived of their legal right in such a manner.
2. Learned counsel for the parties were heard, and record was perused. It was the contention of the learned counsel for the petitioners that Deeds of Will executed by Mst. Marriam, and Mst. Kalsoom were required to be produced before the Court to establish the stance taken by the petitioners in their written statement. It is further his contention that the petitioners are in possession of property in question since 1970 in their own rights, and to establish their title the production of mentioned document is necessary from which they cannot be deprived. The learned counsel relied on: Muhammad Afzal V. Khushal PLD 2004 Azad (J&K) page-43 ; Muhammad Hanif V. Mst. Parsan Bibi 1996 MLD (Lahore) 1158.
3. In reply it was the contention of the learned counsel for the respondent that the suit was filed in 2005, and instant application was moved in year 2009, after lapse of nearly four years, and that too without any reason. He further raised objection on maintainability of the revision petition, while relied on: Mian Muhammad Luqman V. Farida Khanam 1994 SCMR 991, Haji Baz Muhammad V. Mst. Humera alias Shireen Taj PLD 2003 Quetta 128, Nawabzada Malik Habibullah Khan Vs. The Paki Cement Industries Limited 1969 SCMR 965 Muhammad Umar Mirza V. Waris Iqbal 1990 SCMR 964.
4. As far as objection pertaining to non-maintainability of revision petition is concerned, the learned counsel for the respondent relied on several judgments of the Apex Court, as quoted hereinabove, whereby the orders of rejection of applications filed under provisions of Order XIII, Rule 1 & 2 CPC were allowed or disallowed, were challenged in revisional jurisdiction of this Court, whereby it was held that this rejection does not amount to a case decided, therefore, a revision does not lie against such order, and this view as concurred by the Honorable Supreme Court and leave to appeal was refused. But this view later on changed, therefore, the maintainability of a revision petition is to be seen, and thereafter, a view is to be formulated. Section 115 CPC confers power of revision to this Court, which is required to be exercised within the ambit of the Section. The language used in the Section empowered a Court to exercise jurisdiction in "any case which has been decided". The term suit, judgment, order or decree are not used in the Section, rather the term "case" has been used, thus the meaning cannot be restricted only to a final decision of a case.
Therefore, the term ''Case decided" is to be seen in broader concept. It can extend to the orders made, while proceeding with the case by the trial Court, which only determined a part of the case, and this determination has an effect on the rights of the parties, while proceeding to ultimate decision of the case. In view of the same an interlocutory order, which deals with a substantial question in controversy between the parties, and affect their right will come within the ambit of case decided. Therefore, the powers conferred under this Section cannot be restricted only to the extent of final decision of the case, rather it include interlocutory orders also against which no appeal is provided. This seems to be the meaning behind the term case decided. This view get support from the judgment made by the Honorable Supreme Court in case tilted as 'Messrs National Security Insurance Company Limited u. Messrs Hoechst Pakistan Limited, reported in 1992 SCMR, page-718, wherein their lordship held: "The expression "case decided" does not necessarily mean the decision of the entire suit. It may relate to a decision of an interlocutory matter requiring a judicial mind. The old view that an interlocutory matter did not fall within the expression "case decided" was abandoned by the High Court in Bibi Gur Devi's case (AIR Lah.65), "
The same view is taken by Honorable Supreme Court while deciding case titled as "Haji Sakhi Dost Jan V. Pakistan Narcotics Control Board, reported in 1998 SCMR 1798: "14. It is well-settled that the term, "case decided" can he 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 a cause pending before a Court subordihate to the High Court. Reference may be made to Umar Dad Khan v. Tila Muhammad Khan (PLD 1970 SC 288), wherein this Court approved the statement of law in Bibi Gurdevi u. Muhammad Bakhsh (AIR 1943 Lah. (65), wherein the word "case" was explained as follows:-- "I am inclined to think that the true test for deciding whether a particular interlocutory order should or should not be looked upon as a 'case' for the purpose of Section 115, C.P.C., is to be deduced not from the meaning of the word 'case', but from the proper scope and limits of the revisional jurisdiction conferred upon the High Court by that section. From the standpoint of language, pure and simple, there seems to be no good reason why one branch of a suit should be held to be a 'case' but not another and the word may include any interlocutory order. This does not, of course, mean that purely formal orders such as those relating to an adjournment or the summoning of a witness, etc. could be looked upon as 'cases'. But when a decision relates to some matter in controversy affecting the 'rights of the parties, I do not see why it should not be looked upon as a 'case'. This wide interpretation of the word 'case' is not, I think, likely to lead to inconvenience in practice as the field of interlocutory orders subject to revision will be extremely narrow in view of the express and implied conditions necessary for the exercise of the revisional jurisdiction.
Theoretically the extraordinary jurisdiction is unlimited, but in practice it is held to be subject to important and well-recognized limits."
Keeping in view the decisions made by the Honorable Supreme Court, the legal aspect is clear, therefore, instant revision petition is very much maintainable. The objection is over ruled.
5. The brief facts of the case are that a suit was filed by one Ghulam Ali against the petitioners claiming him to be the recorded owner of property Bearing Khasra No. 479/480, Khewat No. 283, Khatooni No. 404, Mohal Mouza Ward No. 44, Tappa Urban Tehsil and District Quetta, measuring 2929 square feet, whereupon a house was constructed by the predecessor in interest of the respondent bearing Municipal No. 7-45/4, situated at Haji Nasir Ali Street. Mohallah Syed Abad.
Alamdar Road, Quetta. He claimed declaration to the extent of his exclusive ownership of property in-question, and also claimed possession of the same, with perpetual injunction against the defendants/present petitioners. The suit was contested by petitioners on factual as well as on legal grounds. In their written statement the petitioners claimed themselves to be the lawful owners with possession of property in-question. According to them half portion of the property is owned by the Petitioner No. 1, while half was owned by Mst. Kalsoom, who later on gifted the same to Petitioner No. 4 Mst. Fatima, being her daughter. They strongly denied any right of Ghulam Ali in the property in- question, During course said Ghulam Ali died, and his legal heirs were brought on record. The present respondent is son of said Ghulam Ali. It is further apparent that during pendency of the case the petitioners filed an application under the provisions of Order XIII, Rule 1 & 2 CPC with request that they may be allowed to produce the WILLS executed by Mst. Kalsoom and Mst.
Marriam. It was their contention that they have relied on the documents in their written statement, but inadvertently the documents were not placed on record. This application was strongly contested by the respondent/plaintiff. The trial Court through order dated 24th March 2009 disallowed the relief. Feeling aggrieved of the order instant petition has been filed.
6. Order XIII, Rule 1 CPC provides procedure for production of documentary evidence before the Court during course of trial, which reads as under:-- "1. Documentary evidence to be produced at first hearing.--(1) The parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every 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.
(2)The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
(3)On production of documents under this rule, the Court may call upon the parties to admit or deny the documents produced in the Court and record their admission or, as the case may be denial."
While Rule-2 of Order-XIII CPC provides the consequences of non-production of documents, which reads as under: "2.Effect of non-production of documents.--No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements 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 the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing."
Keeping in view both the provisions, it is mandatory on the parties to file all the documents relied upon at first hearing of the suit, and in case of failure they are restrained from producing the same at later stage, but with an exception as provided in Rule 2. Whereby a discretion lies with the Court to allow production of a document, subject to the condition that a good cause is shown to the satisfaction of the Court for non-production of the document at required stage.
7. In present case, though in the instant petition it has been asserted that these documents were missing at the time of filing of the written statement, but thereafter, discovered from a box of Mst.
Kalsoom. But no such reason is given in the application filed by the petitioners before the trial Court, except showing non-filing of the documents as inadvertently. No reasonable cause has been shown in the application. Furthermore, from the contents of the written statement filed by the petitioners before the trial Court it is apparent that they are claiming their right on half portion of property in-question being owned by Muhammad Musa/Petitioner No. 1, while the remaining half on the basis of a gift made by Mst. Kalsoom in favour of Petitioner No. 4 Mst. Fatima, and according to them the Gift Deed/ WILL is a registered document. It is further apparent from the contents of the written statement that there is no mention of execution of any WILL on behalf of Mst. Marriam, rather it was specifically pleaded that "defendants are residing in house in-question since long and Mst. Marriam along with plaintiff is trying to usurp the property in-question by playing fraud. In this respect they also filed baseless suit, lodged FIR and suit in hand." It is further apparent that the WILL executed by Mst. Kalsoom in favour of Petitioner No. 4 is mentioned at Serial No. 4 of the documents filed with the written statement as per list, but it seems that at the time of filing of written statement this document was never filed by the petitioners before the trial Court. It is further to be noted that the document is described as a registered one. If at the time of filing of the written statement the petitioners were not in custody of the document, but they were surely in knowledge of it as per their own contention, there is no explanation that what restrained them from obtaining copy of it from the concerned office during all these years. No reasonable cause has been shown by the petitioners to allow them for production of a document, A which surely was in their possession, and shown to be filed along with the written statement. Even otherwise, the jurisdiction vested in the Court under Section 115 CPC is limited to the extent provided therein, and the party aggrieved has to make out a case within the provided ambit to get an order by this Court under the Section. But in the present case the petitioners have not established any illegality or material irregularity committed by the Court below while exercising its discretion under Order XIII, Rule 1 & 2 CPC. Therefore, in the circumstances, it is not a fit case for making any interference in the impugned order.
8. The learned trial Court has properly assessed the application, and recorded findings, which does not suffer from any illegality or irregularity. There are no merits in the petition, which is hereby dismissed with no orders as to costs.