' SHOAIB SAEED, J.---This writ petition is filed against the impugned orders dated 3-10-2013 and 18- 6-2013 passed by respondents Nos.1 and 2 respectively.
' Brief facts of the case are that petitioner on 10-3-2010 filed a suit for specific performance with permanent injunction along with an application under Order XXXIX, Rules 1, 2, C.P.C. Against the respondents Nos.3 to 7 in respect of land lot No,75 (present) Khata No,96/93 Khatooni No,251/243 Qitat No,15 total land 120 Kanals, share sold measuring 30-Kanals along with share of Ihata and share of standing trees on the basis of an agreement to sell dated 1-1-1979 for a total consideration of Rs,11,000. The agreement to sell was said to be executed on 1-1-1979 by Lehrasap Khan predecessor-in-interest of (respondents Nos.3 to 7) with the petitioner (claiming Lehrasap Khan to be his real brother). It was asserted that from the sale price, allegedly Rs,10,000 were paid earlier and utter receiving the balance consideration of Rs,1000 agreement to sell was executed. Written statement was filed in this regard by respondents Nos.3 to 7. Another application under Order VII, Rule 11, C.P.C. Was filed by respondents Nos.3 to 7, petitioner filed reply thereto. Out of the divergent pleadings of the parties various issues were framed.
' Petitioner also moved an application for producing as secondary evidence (i) agreement to sell
(ii) receipt original whereof were said to have been lost by clerk of the Advocate, some time before filing of the suit.
3. Counsel for the petitioner contended that both Courts below passed erroneous orders where under the Courts misconstrued the law and his application for production of lost documents (agreement to sell and receipt) as secondary evidence was disallowed though copies of the said documents should have been permitted for production under Article 76 of the Qanun-e-Shahadat Order, 1984 which allows such evidence where the original is lost. It was also contended that leading oral evidence in absence of the said documents will be a futile exercise.
4. Arguments heard. Record perused.
5. Article 76 Qanun-e-Shahadat Order, 1984:-- ' Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-
(c) that the original has been destroyed or lost, or when the parties offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.
' It was averred in the plaint that before institution of the present suit the original documents were delivered by the petitioner to an advocate for filing of the suit, the clerk of the advocate lost the documents, so permission to produce copies of the documents as secondary evidence was mandated under the relevant article and permission should have been granted.
6. In order to invoke the provisions of Article 76 of the Qanun-e-Shahadat Order, 1984, loss of document was required to be proved prior, to seeking permission for secondary evidence. The dictum laid in 2001 CLC 1796 is "to make secondary evidence admissible, it is necessary that loss of original document should be proved and permission to adduce secondary evidence obtained from the Court. Loss of document not proved, secondary evidence even if produced is valueless".
Proof of existence, its execution and loss of original documents is mandatory especially where execution of original document is declined by the other party. Petitioner without bringing on record such unimpeachable evidence and permission of the Court as envisaged under Article 76 of the Qanun-e-Shahadat Order, 1984 has sought production of documents through an application which was rightly disallowed by both Courts below. There is no illegality or infirmity in the orders passed by the Courts below which do not require interference by this Court in Constitutional jurisdiction, the writ petition being devoid of merits is dismissed in limine.