' RAUF AHMAD SHEIKH, J.---The petitioner has assailed the vires of order dated 14-11-2011 passed by the learned Civil Judge Nankana Sahib whereby an application for permission to produce the secondary evidence moved by him was dismissed and has also challenged the order dated 26-4- 2012 passed by the learned Additional District Judge Nankana Sahib whereby civil revision filed by him met the same fate.
2. The facts in brief as emerge on perusal of the record are that the petitioner and respondents Nos.4 to 11 filed a suit for specific performance of the contract in respect of land fully described in para No.1 of the plaint. It was contended that defendant/respondent No.1 agreed to sell the disputed land for a sum of Rs.10,20,000 vide agreement deed dated 16-2-2009 and received a sum of Rs.9,00,000 as earnest money and thereby promised to execute the sale deed till 20-8-2009. In the application for permission to produce the secondary evidence, they contended that the parties are closely related to each other so after executing the agreement to sell dated 16-2-2009 and receiving the earnest money, the respondent No.1 kept the agreement deed with him on the pretext that he would hand over the same to them on payment of the remaining sale price so the plaintiffs did not insist on delivery of the agreement as defendant/respondent No.1 is their real uncle. It was contended that as the document is in possession of the defendant/ respondent No.1 and he has refused to produce the same so the petitioner be granted permission to lead secondary evidence to prove the same.
3. The application was resisted by the respondents who denied the contents made therein and urged that in the list appended with the plaint it is stated that the original agreement deed is in possession of the plaintiffs/petitioners and they will produce the same and similarly -in para No.3 of the plaint they have contended that the original document is in their possession and they will produce it. This application was dismissed by the learned trial court vide order dated 14-11-2011 and revision petition filed by the petitioners was also dismissed vide impugned order dated 13-4-2012 of the learned Additional District Judge.
4. The learned counsel for the petitioner has contended that both the courts below have ignored the fact that the-document is not in possession of the petitioners and other plaintiffs and the same is in custody of the adverse party i.e. Respondent No.1; that the petitioners have been deprived of the right to produce the evidence in support of their contention and that there is no mode to prove the document except through production of Photostat copy of deed and register of the petitioner writer. In support of the contentions raised, reliance is placed on 1997 CLC 1327(Lahore).
5. It is true that under Article 76 of the Qanun-e-Shahadat Order, 1984, the secondary evidence relating to the document may be adduced if the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved. The condition precedent for according such permission in this regard is that the document is shown or appears to be in possession of the person against whom it is sought to be proved and he has failed to produce the same in spite of notice under Article 77 of the Qanun-e-Shahadat Order, 1984. In this case, it is specifically mentioned in para No.3 of the plaint that the original agreement to sell would be produced. It is not mentioned in the plaint that the original document was in possession of the defendant/respondent No.1 or he had taken the same as is contended in the petition seeking permission to lead secondary evidence. It is also not denied that in the list under Order VII Rule 14, C.P.C. The plaintiffs had categorically stated that the document was in their possession and control and they would produce the same. In view of these 'important and categorical averments in the plaint and the list appended therewith, the claim of the petitioners that the same is in possession of respondent No.1 appears to be totally false so they cannot be allowed to produce the secondary evidence as production of the primary evidence is rule under Article 75 of the Qanun-e-Shahadat Order, 1984. In this respect reliance is placed on PLD 2005 SC 418. The learned trial court and learned Additional District Judge both rightly dis-allowed the prayer made by the petitioner. The impugned orders do not suffer from any illegality or infirmity. The writ petition is without merits and the same is dismissed in limine .