1. ABDUL HAYEE KURESHI, C. J.-We propose to pass a single order in H. C. A. No. 78/1980 and H. C. A. No. 79/1980, as the facts in both the cases are identical and the point of law is common, United Bank Ltd., respondent No. 1 in both the appeals, had filed two separate suits, bearing No. 141/1976 and No. 142/1976, on the Original side of this Court for recovery of sums of Rs. 866,235/89 and Rs. 6,92,477.04 against Shabbir Ahmad Abbasi (appellant in H. C. A. No. 78/1980) and Taj Muhammad Abbasi .
2. (appellant in H. C. A. No. 79/ 1980). James Pinto who is respondent No. 2 in both the appeals was also a co-defendant with Shabbir Ahmad Abbasi and Taj Muhammad Abbasi. After the filing of the suits, the appellants served a notice on respondent No. 1 under Order XI, rule 15, C. P. C. Seeking inspection of documents on which the plaintiff/respondent, United Bank Ltd., was relying.
3. Respondent No. 1 showed their inability to give inspection of the documents to the appellants. The appellants, however, filed a written statement, in which it was averred that the respondent/plaintiff had not filed the statement of accounts, or any other document along with the plaint. It seems that respondent/plaintiff was asked to disclose the documents on affidavit, but, on the same not being disclosed, the stage of directions was closed. Issues were framed, and a month's time was granted for production of documents in Court, but it seems that the documents were not produced until 22nd March 1978, when the respondent/plaintiff produced the same at the time of hearing. An application under section 148, C. P. C. Was also filed along with the documents for extension of time to produce the same. At the stage of evidence, the respondent/plaintiff wanted to produce the documents, which were objected to by the appellants and respondent No. 2. Several applications were made by both the parties, and the details thereof are stated in the first paragraph of the order of the learned Single Judge.
4. The main controversy was in regard to production of documents at a belated stage, and the case of the appellant/defendant No. 1 was that, in view of the provisions of Order VII, rule 14, Order VII, rule 17, and Order VII, rule 18 of the Code of Civil Procedure, the respondent/plaintiff could not produce the documents. Even before us, Mr. Badrudoja Khan has mainly argued the same point, which is in regard to the reception of these documents at the stage of evidence.
5. The pattern of the suits was that the appellant had an account in a branch of the respondent/plaintiff-Bank, and, at all relevant times, respondent No. 2/defendant No. 2 was the Manager of the Branch of the Bank. That allegation is that the appellant/defendant No. 1 conspired with respondent No. 2/defendant No. 2, so that huge advances were allowed in contravention of the regulations of the State Bank of Pakistan and without any security. It is also alleged that active stage were taken by respondent No. 2/defendant No. 2 to conceal the advances, and, to that end, the books of account were falsified, so as to show an incorrect state of affairs in regard to the advances. In the plaint, documents, namely, cheques, vouchers, pay orders, books of account and correspondence were disclosed as the documents that were relied on by the respondent No. 1 /plaintiff. On 23-2-1973, certain documents were filed in each one of the two suits by the respondent No. I/plaintiff. It is the case of respondent No. 1/plaintiff that separate applications under section 148, C. P. C. Were submitted in each one of the two suits, but, while the 'said application was not traceable in Suit No. 141/1976, it was available on the record of Suit No. 142/1976.
6. On 30-10-1978, cheques, pay orders and vouchers were, by consent, brought on record as admitted documents. It seems to be the case of respondent No. 1/plaintiff that the documents were not brought on the record at an earlier stage, because the same had been misplaced.
7. The learned Advocate for the appellants has relied on the provisions of Order VII, rule 14, C. P. C. The provision reads as follows : "14. Production of Documents on which plaintiff sues.-(1) Where ' a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
(2) List of other Documents.-Where the plaintiff relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint."
8. Order VII, rule 18, has also been relied upon, and the said provision reads as follows : "18. Inadmissibility of Document not produced when plaint filed.--41) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced, or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit."
9. The learned Advocate for the appellants has contended before us that Order VII, rule 14, C. P. C., contains a mandatory provision, so that the documents in possession, or, power of respondent No. 1/plaintiff had to be produced along with the plaint, and a copy thereof had to be delivered to the defandant. Order VII, rule 18, provides that, if such a document, as is referred to in Order VII, rule 14, C. P. C. Is not produced at the proper stage, the same cannot be received in evidence without the leave of the Court. In that context, the provisions of Order XIII, rule 1 and Order XIII, rule 2, C. P. C. Are also relevant. These provisions read as follows : "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."
10. We asked the learned Advocate if his contention was correctly stated when be said that for the documents not having been produced at the proper stage, the same could not have been produced later, and the reply of the learned Advocate was that, in the circumstances, the late production of documents was fatal. Two points, therefore, emerge for' consideration. Firstly, if Order XIII, rule 2, C. P. C. Enabled a party to produce the documents. At a late stage, and secondly if the permission to produce the documents was ,correctly granted by the learned Single Judge. The learned Advocate for the appellants has relied on the case of Jiwan and another v. Nawab and another (1) a judgment of Compbell, J. In that case, all that is stated in the judgment was the following effect : "This point Was raised before the lower appellate Court which also refused to accept the documentary evidence, and as this evidence was not listed in a statement attached to plaint as is required by Order VII, rule 14 (2), Civil Procedure Code. I see no reason why the Courts should have admitted it."
11. It would seem that no reasons have been stated by the learned Judge for arriving at the conclusion. The next case in point is a judgment of D. B. Of Lahore ' High Court in the case of Sheikh Allah Ditta v. A. F. Ahmad & Co. And others (2). The facts, in that case, were that the document in question was a copy of Jamabandi, which was not filed with the plaint, and was not included in the list of documents on which the plaintiff relied. Evidence of the parties was closed in August, and the case was fixed for judgment on a date after two months. In the meantime, an application was made for admitting this document, and such application was rejected. The D. B. Upheld the order of rejection by the trial Court, and stated the requirements of law in the matter of admission of documents. Such requirements, according to the D. B., were as follows;--
(1) AIR 1926 Lab. 527(2) PLD 1954 Lab. 608 "We should be clear as to what exactly the requirements of law are in the matter of admission of documents, and if legal practitioners ignore them, they not only delay the administration of justice but make themselves liable to damages in respect of their clients. Under Order VII, rule 14, where a plaintiff relies on a document, whether or not in his possession or power, as evidence in support of his claim, he shall enter such document in a list to be added or annexed to the plaint. Under rule 18 a document which ought to be entered in the list and which is not entered shall not, without the leave of the Court, be received in evidence at the hearing of the suit. Under Order XIII, rule 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. Undor rule 2 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. In the present case, on the assumption that the document in question was not in the possession or power of the plaintiffs-a very liberal assumption in a land suit-Order XIII will not apply. It was a document which, at the least, the plaintiffs should have included in their list of reliance. If they did not so include it, under Order VII, rule 18, they cannot, without the leave of the Court, produce it 'at the hearing of the suit'. It is questionable whether after evidence and arguments have been concluded the case can still be regarded as being at the stage of hearing, but even on that assumption the question would be whether the rule means anything when it makes the admission of a document subject to the: leave of the Court."
12. The D. B. Was of the opinion that the plaintiff, or, his counsel was unduly negligent in that case. In the case of the Lahore Improvement Trust v. Messrs Khuda Baksh-Meraj Din PLD 1956 Lab. 252 Mr. Justice B. Z. Kaikaus was considering the question in regard to reception of some document at a late stage. On an interpretation of Order XIII, rule 2, C. P. C. The learned Judge took the view that ordinarily authentic documents should not be refused, though produced at a late stage and the learned Judge went on to state further that the Court has a discretion in the matter, and, if the reception of the document was to have a serious delaying effect, it might justify an order of rejection of the documents. It would appear that the learned Judge took the view that permission to produce document should be refused, if the authenticity of the document was in doubt, or, the intention underlying late production of document was to delay the proceedings. The learned Judge interpreted Order XIII, rule 2, C. P. C. And, in that context, expressed as follows : "My interpretation of rule 2 of Order XIII is that good cause is to be shown for the reception in evidence of the document in question. There is a discretion in the Court to grant leave as there is in case of infringe--ment of other connected rules. The Court is entitled to consider not only the reason for non-production but the authenticity of the document and the delaying effect of the reception in evidence of the document, In cases where the document is of undoubted authenticity, leave should ordinarily be granted but the discretion of the Court is there."
13. The learned Advocate for the appellants also referred to a judgment of late Chief Justice Manzur Qadir in the case of Sh. Muhammad Hussain and another v. Fazal Iqbal and others (1). This judgment was on a Revision Application, and the document produced was not even mentioned in the list of documents on which the plaintiff relied, nor had the plaintiff made an application for being permitted to produce the documents. The Revision Application was dismissed. Reliance was also placed on the judgment in the case of the Lahore Improvement Trust v. Sh. Karamat A.I (2), and the dictum laid down by the learned Judge was more, or less, at par with the judgment in the case of Sheikh Allah Ditta.
14. On an appraisal of the various .Provisions of law quoted in the foregoing paragraphs, as also the cases, which have been referred to in this order, the scheme of the Code appears to be that the plaintiff shall produce the document upon which he sues along with the plaint, and he should also enter such documents, on which he relies, in a list to be annexed to the plaint. Again, Order VII, rule 18, C. P. C. Provides that, if such documents, as required to be filed, or, to be mentioned in the list, as provided by Order VII, rule 14, C. P. C. Are not so produced, or, mentioned in the list, then such documents shall not be received in evidence without the leave of the Court. But Order XIII, rule 2, is a provision, which provides a mode for curing the non-compliance with the provisions of Order VII, rules 14 and Order VII, rule 18, C. P. C. This rule is in the nature of an exception, providing that, on good cause being shown to the satisfaction of the Court for non-production of the document at the earlier stage, the Court may receive such evidence on record. The Court, in that case, has got to record reasons for the order. The position clearly is that mere non-compliance with Order VII, rule 11, or Order VII, rule 18, C. P. C. Would not defeat the right of the plaintiff to produce the documents at a belated stage. No doubt, an order of that nature will not be made as a matter of course, but has to be governed by sound judicial discretion. The relevant considerations are the ability, or, otherwise of the plaintiff to produce the document at the proper stage, reasons for non production being good, or, bad, the nature and authenticity of the document, itself, and whether an intention of delaying proceedings is the cause for default. One predominant consideration would also be the interest of justice in the case, which will have to be kept into consideration by the Courts in circumstances of such separate case.
15. Applying the above test to the instant case, we find that the learned Single Judge has exercised his discretion judicially and consistently with what the . Interest of justice demanded. The suits were for a substantial amount, and it is not the case of the appellants that these documents have been forged,or, created at a late stage for sustaining the suit, or, for creation of false evidence. The application for reception of the documents was also made at the time when the suits were at the stage of recording evidence, and therefore it could not be said that respondent No. 1 plaintiff was interested in delaying the disposal of the suits. The documents were not produced earlier, as the same were not traceable as per the averments of respondent No. 1/plaintiff. It is not the case of the appellants that such averments were untrue, and indeed he could not set up a defence of such nature in these circumstances, because it was respondent No. 1/plaintiff who was the keeper of these docu--ments, which are records of the Bank, including cheques, vouchers, etc. In any case, the averment is unrebutted, and no attempt was made by the learned Advocate for the appellants to show that the averments were no correct.
(1) PLD 1963 Lah. 501(2) PLD 1959 Lah. 597 The next point that has been urged by the learned Advocate for the appellants is that no application under Order .XIII, rule 2, C. P. C. Had been made by respondent No. 1/plaintiff: It is no doubt true that application under Order XIII, rule 2, C. P. C. Has not been made under a correct caption, or, title, but it cannot be overlooked that respondent No. 1/plaintiff did C make an application under section 148, C. P. C., which i3 a general provision enabling a party to seek extension of time for doing that which the law requires him to do, or, what is being done in compliance with the order of the Court. The mere fact of omission to mention Order XIII, rule 2, C. P.
16. C. Would not serve to defeat the application, as, fairly speaking, even section 148, C. P. C. Is designed to achieve the same object which, in given circumstances, could be achieved by recourse to the provisions of Order XIII, rule 2, C. P. C. At best, the argument is of highly technical nature, which we would not accept in the circumstances.
17. We, therefore, dismiss both these appeals in limine. s. A. H. Appeals: dismissed.