MUHAMMAD JUNAID GHAFFAR, J.---This is an Application filed under Order XIII, Rule 2, C.P.C., by the Plaintiff seeking condonation of delay in filing of lists of witnesses and documents.
2. Mr. Anwar Mansoor Khan, Learned Counsel for the plaintiff has contended that in this matter Issues were settled on 04.11.2013 and parties were directed to file list of witnesses within seven days and documents, if any within one month. However, since the plaintiff was seriously ill and under treatment in London, majority of the family members were attending him and therefore, there is a delay of 6 days in filing the list of documents and of 8 days in filing the list of witnesses. He has further contended that the documents pertaining to the Suit property were being looked after by the brother of deceased plaintiff Haji Abdul Rauf, who was in London, mostly looking after his ailing brother, and therefore, such delay may be condoned. Per Learned Counsel the Court has discretionary powers to condone such delay in appropriate cases and the time provided in Order XIII is not mandatory, whereas, the matters are to be decided on merits rather than on technicalities. He has further contended that defendant No,1 is opposing such application to delay the decision of the case on merits, as the plaintiffs have a better and a prima facie case in their favour, and therefore, the listed application may be allowed and parties be allowed to lead their evidence. He has also submitted that majority of the documents have already been referred to in the plaint, therefore, no prejudice would be caused to defendant No,l. In support of his contention he has relied upon the cases reported as 2013 CLC 1789 (Kohinoor Tobaco Co. v. S.M. Idress Allawala), PLD 1963 SC 382 (Imtiaz Ahmed v. Ghulam Ali) 2014 M LD 428 (Pir Sher Muhammad v. Sui Southern Gas Company) 2004 YLR 1841 (Muhammad Khaliq v. Tehsildar Settlement), 2009 YLR 1841 (Sardar Iftikhar Ud Din v. Additional District Judge), 2003 CLC 1579 (Firhan Faheem v. District Judge), PLD 2006 Kar. 58 (Uzma Aziz v. Maryam (Dorislions) and others, 2005 SCM R 152 (Anwar Ahmed v.
Mst. Nafis Bano), 1986 CLC 858 (Rehmat Ullah v. Abdul Ghani) 2005 CLC 1305 (Trading Corporation of Pakistan v. Rahat & Co.), 2014 CLC 188 (Professor Syed Khurshid Alam v. Ch. Muhammad Aslam), 2005 CLC 1698 (Tehsil Municipal Administration v. Additional District Judge) and 2005 CLC 780 fDawood Exports v. Maersk Lime Pak.)
3. On the "other hand Mr. Mansoor-ulArfin, Learned Counsel for defendant No,1 has contended that no specific dates during which the plaintiff was hospitalized have been given in the application, whereas, it is impossible to believe that the entire family/ legal heirs had gone to London to attend, their ailing brother. He has further contended that since day one, this Suit has been contested through an attorney namely Haji Jan Mohammad, who is also brother of the deceased plaintiff, and therefore there is no justification to grant the listed application. Learned Counsel has further contended that though it is within the discretion of the Court to extend time in such matters, however, such discretion has to be judicially exercised by the Court, and per Learned Counsel the conduct of the plaintiffs in the instant matter, does not entitle them for exercise of such discretion.
Learned Counsel has further contended that even otherwise list of documents which has now been filed contains a number of such documents, which are out of the pleadings and therefore, they cannot be taken on record. In support of his contention he has relied upon the cases reported as 1990 SCM R 964 (Muhammad Umar Mirza v. Waris Jabal and others 1999 SCM R 951 (Rah Nawaz and 8 others v. Muhammad Amir and another) and PLD 1959 (W.P.) Lahore 597 (The Lahore improvement Trust v. Sh. Karamat Ali).
4. Mr. Bashir Ahmed Khan, Advocate while exercising the right of rebuttal has contended that the plaintiff remained in hospital for a period of 14 months and therefore the matter could not be attended properly by his family members; hence the delay may be condoned, as sufficient good cause has been shown on their behalf.
5. I have heard all the Learned Counsel and perused the record. It appears that while settling the Issues on 04.11.2013, the Court had directed the parties to file list of witnesses within seven days, whereas, documents, if any, were required to be filed within one month. It is an admitted position that the list of witnesses was filed on behalf of the Plaintiff on 19.11.2013, whereas, the list of documents was filed on 10.12.2013. It is not in dispute that there is a delay of six and eight days in filing of such lists respectively. The provision in respect of production of documents is governed by Order XIII, C.P.C. And Rule 1 thereof states that documentary evidence is to be produced at the first hearing and 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 1[(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.)"
' Whereas, Rule 2 provides a situation for non-production of such documents and 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." (Emphasis supplied)
6. Perusal of the aforesaid rules reflects that no documentary evidence in the possession of any party, which should have been, but has not been produced in accordance with 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 such evidence shall record the reasons for so doing. This provision in fact caters a situation, wherein, a party to a Suit has filed such documents before the Court and subsequently, wants to bring and add some other documents, which initially were not provided in the list of documents filed in terms of Rule 1 herein above. Rule 2 in fact enables the Court to even consider the documents, which though were not initially in the list of documents filed before the Court, but are being brought subsequently on record through an application and the Court is empowered if any "good cause" is shown to its satisfaction to allow and bring on record such documents. This in fact provides a wider discretion to the Court to even consider such documents, which have not been initially mentioned in the list.
Insofar as the present case is concerned in this matter it is only the delay in filing of list of witnesses and documents, for which con donation is being sought and the stage has not yet arrived to see that any additional documents are being brought on record. In my view the reading of Order XIII, Rules 1 and 2 in juxtaposition, appears to be directory and not mandatory so as to Non-Suit a party by refusing to produce documents and adducing its evidence. It is only that a party seeking permission under this Rule has to show "good cause" to the satisfaction of the Court. It in fact empowers the Court to allow consideration of documents even during the evidence or even after the evidence has been completed. The law in this regard is very much settled as it is the consistent view of the .Hon'ble Supreme Court as well as this Court in that the provision of Order XIII, Rule 2 is to be construed liberally, and delay in producing documents by itself is not a good ground for refusal (in.This matter it is only filing of list which is delayed). Whereas, on production of such documents, defendant No,1 in this matter will be within its own right to question those documents as well as cross-examine the witnesses so produced on behalf of the plaintiff, hence no prejudice would be caused.
7. Though where rules of exclusion apply and the documents cannot be filed without leave of the Court, that leave should not be ordinarily refused, however, it would be erroneous to read this as implying that there is no discretion left with the Court. The Court has a discretion which must be allowed to be exercised in each case in the light of peculiar facts of the case before the Court. It is also of pivotal importance to note that Order XIII, Rule 2 is an exception to Rule 1 ibid, and as discussed herein above, it is to be liberally construed in that the permission to file documents after hearing in a case has commenced should be granted as an exception, rather than as a rule, but not so if hearing has not commenced when provision of Order XIII Rule (2) C.P.C., should be liberally construed. [See LIYAS MORTINE and Associates (Private) Limited v. Muhammad Amin Lakhani (1999 M LD 3018)]. For the sake of repetition it may be observed that in this matter it is only delay in filing of lists of witnesses / documents which is being sought to be condoned, whereas, after settlement of issues the matter is pending for want of hearing of this application and has not proceeded any further for recording of evidence of the parties.
8. In the instant matter though no specific dates have been provided or mentioned in the application in respect of the hospitalization of the plaintiff, but such fact is an admitted position that the plaintiff was seriously ill and had expired thereafter. In such circumstances, it could not be expected that the plaintiff could have been that vigilant so as to comply with the directions of the Court to file lists of witnesses and documents within the specified period. Moreover, the delay is only of six and eight days respectively in filing of lists of witnesses and documents, and therefore I am of the view that such delay ought to be condoned. Insofar as the objection of the Learned Counsel for the defendant No,1 that this matter was being pursued on behalf of Haji Abdul Razzak Yaqub (deceased) through his attorney namely Haji Jan Mohammad is concerned, from perusal of the original plaint, filed in this Suit on 13.05.2011 it does not reflect so, as the plaint has been signed by the deceased plaintiff himself. The only Power of Attorney, which is available on record in favour of Haji Jan Mohammad is dated 06.03.2014, which has been executed by the widow and daughters of the deceased plaintiff after his death, therefore, in the circumstances, I am of the view that no prejudice of whatsoever nature would be caused to the defendant No,1, if the listed application is allowed as sufficient "good cause" has been shown on behalf of the plaintiffs to condone the delay in filing of lists of witnesses as well as documents. Accordingly, listed application is allowed and the parties are directed to proceed further to record evidence, however, the defendant No,1 would be at liberty to raise any objection in respect of the documents which according to the learned Counsel for defendant No, 1 are being brought on record out of pleadings in accordance with law and the procedure in vogue.
9. In the above terms.