Sultan Tanvir Ahmad, J:- The present Constitutional Petition is filed against Judgment dated 10.08.2021 passed by the learned District Judge, Rajanpur whereby the order dated 25.05.2021, passed by the learned trial Court has been maintained.
2. Facts, necessary for the disposal of the present petition, are that ex-parte Judgm ent and Decree was passed on 03.10.2017 against the Petitioner and others in the suit titled "Humayoun Rouf versus Mian Usman Ali", filed on 09.05.2017 for partition of property . On 11.12.2019, Application under Section 12 (2) of the Code of Civil Procedure, 1908 was filed by Respondent No.3 before the learned trial Court for setting aside the previously mentioned Judgment and Decree, being outcome of the fraud. Respondent No.3 filed an application for producing certified copies of mutations and original family registration certificate on 04.05.2021. This application was accepted by the learned trial Court on 25.05.2021. Aggrieved from the same, Civil Revision No. 23 of 2021 was filed which was dismissed on 10.08.2021. The said Judgment, passed by the learned District Judge, Rajanpur is challenged by way of present Constitution Petition.
3. It has been argued that the decision of learned two Courts below is contrary to the law; that application has been accepted without 'good cause' which was essential to be reflected/established under Order 13 Rule 2 of the Code of Civil Procedure, 1908. Learned counsel for the Petitioner has relied upon the case titled "Muhammad Anwar and Others versus Mst. Ilyas Begum and Others (PLD 2013 SC 255) and submitted that negligence on the part of the advocate of a party is not a 'good cause'. Conversely, learned counsel for the Respondent has submitted that matter pertains to inheritance of property and the documents in question are public documents and they are necessary to be considered, to reach the just conclusion. Further submitted that the case is still at the evidence stage and if the Respondent-party is allowed, to produce document, no damage will be caused to the case in hands.
4. Both the parties have strongly argued the case on the basis of Order 13 Rules 1 and 2 of the Code of Civil Procedure, 1908 which are 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). XXXXXXXX (3).XXXXXXXX "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 doing". (Emphasis supplied)
5. Combined reading of the above provisions makes it clear that the parties or their pleaders are required to produce the documents on the first hearing of the suit, which they intend to rely upon, if not already filed, enabling the Court to call upon the parties to admit or deny the documents. The documents, which were in the possession or within the power of the parties, cannot be produced on subsequent stage, unless (i) 'good cause ' is shown (ii) this 'good cause ' should be to the satisfaction of the Court and (iii) Court is required to record reasons for allowing such production of documents.
6. The likely objects behind the above two provisions are to prevent the litigants from fraud, to avoid undue delays and to create a barrier against the misuse of process of law. The purpose of requiring to record reasons for allowing such production is to be watchful that no collateral purpose besides establishing the cause(s) in the pleadings and enabling the Court to reach a just conclusion, can be achieved by the litigants. There appears no intention behind this part legislation, to completely close the doors for receiving the documents, in the circumstances where these documents are necessary to reach the just conclusion and other side can reasonably be af forded an opportunity to admit or deny or rebut those documents.
7. It is frequently held by the Honourable Supreme Court of the Pakistan that at the time of allowing production of documents under Order 13 Rule 2 of the Code of Civil Procedure, 1908 the learned Court should also consider the genuiness of the documents required to be produced and the prejudice that can possibly be caused to the other side of not having timely notice as well as the chance of depriving the opportunit y to rebuttal of said documents.
Reliance can be placed on the case titled "Anwar Ahmad versus Mst. Nafis Bano through Legal Heirs "(2005 SCMR 152) and "Zar Wali Shah versus Yousaf Ali Shah and 9 Others "(1992 SCMR 1778 ), "Khurshid Ali and 6 Others versus Shah Nazar "(PLD 1992 SC 822 ), Muhammad Aslam v. Mst. Sardar Begum alias Noior Nishan 1989 SCMR 704. In "Anwar Ahmad versus Mst. Nafis Bano through Legal Heirs" (supra ), the Honourable Supreme Court has decided that as far as non-filing of documents along with plaint is concerned it has never been considered fatal in view of provisions of Order XIII, rule 2, C.P.C. which empowers the Court to receive documentary evidence during the trial.
8. Furthermore, in case titled "Aurangzeb Iftikhar and 3 Others versus Sheikh Muhammad Haneef and 11 Others" (2020 CLC 1870 ) this Court has already decided as follows:- "......Needless to say that evidence should not be shut out to exclude documents generally, except where they are apparently suspicious, forged or fabricated, so as to prevent fraud. The objection raised by a party cannot be taken in order to penalize the other side for not producing document in time, rather it may be given an opportunity to produce evidence, which, for some good cause, could not be produced in time. If the Court is satisfied that the document is relevant and necessary for just decision of the case, it can be allowed at any stage...." . (Emphasis Supplied)
9. Sardar Bilal Masood Gorchani, learned counsel for the Petitioner has vigorously argued that ground taken in the Application is unintentional error on the part of the counsel of Respondent No. 3. It is contended by the learned counsel that this ground does not amount a 'good cause ' and this phrase has to be given a narrow interpretation. I am afraid that such approach and highly restrictive meanings to the phrase 'good cause', without attending the other circumstances of the case and elements of Order 13 as well as rational behind the said provision of law, can result into miscarriage of justice.
10. There is no doubt or denial, on the part of any party present that Respondent-party remained negligent in not producing the said documents at the earlier stage. However, the real question for consideration is whether the negligence of such nature can be condoned and the plea of default due to inadvertence and human error can be straightaway rejected as no 'good cause', in every case and more importantly when the documents are relevant for the case. The error to attach a document with plaint or mentioning it in the list, in the experience of even a careful and prudent person, is neither improbable nor unexpected and if that is the case, such reason if joined by other indicators/elements can constitute a 'good cause'.
11. There cannot be any fixed criteria or a yardstick to ascertain of 'good cause' and it certainly will fluctuate with the facts of every case, which has to be seen by the learned Courts while keeping in view the nature of documents sought to be produced, stage of the trial and / or proceedings and other elements indicated above. In the case titled "Rab Nawaz versus Muhammad Nawaz and 2 Others" (1994 CLC 64), this Court has already decided that the negligence of counsel for not including document in the list should not be a reason for denial of the documents from production of document, which can be a basis of decree.
12. In the present case, the Application for producing the documents is filed, before the completion of process of evidence and the petitioner-side has still not produced its witnesses and documents. The stage, when the documents, is requested to be produced is not a belated stage , especially when the opposite party has sufficient time and opportunities to rebut or challenge the documents. The documents, sought to be produced, are certified copies of mutations and original Family Registration Certificate (FRC), which are maintained in the ordinary course of duty by officials and the documents are public documents. The learned two Courts below have also given reasons for allowing the application while considering the element of 'good cause '.
13. The learned counsel of the petitioner has failed to show any jurisdictional defect, illegality or material irregularity requiring any interference through Constitution Petition. The petition is, therefore, dismissed , with no order as to costs.