ANWAAR HUSSAIN, J. Through this single judgment, titled Civil Revision No. 466/2022 as well as Civil Revisions Nos. 467/2022, 809/2022, 810/2022, 811/2022, 812/2022 and 813/2022 ("the Revision Petitions") filed under section 115 of the Code of Civil Procedure, 1908 ("C.P.C.") are being decided.
Messrs Faisal Bank Limited ("the petitioner bank") and its officials are the petitioners in the Revision Petitions whereas respondent No. 1 arrayed in all the Revision Petitions are different individuals but admittedly account holders of the petitioner bank and members of one family and hereinafter, collectively referred to as "the respondents".
2. By way of factual background, it is noted that the respondents instituted seven separate suits ("the suits") against the petitioner bank, as well as its ex-Branch Manager, namely, Asif Qayyum arrayed as respondent No. 2 in the Revision Petitions, for recovery of certain amounts lying in their respective accounts, maintained with the petitioner bank, that were allegedly siphoned off from their respective accounts. In the suits, damages have also been claimed by the respondents.
Admittedly, the suits are pending and being heard by the same learned Trial Court simultaneously, although they have not been consolidated. It is also admitted position borne by record that the petitioner bank has initiated criminal proceedings against its officials and others including Respondent No.2 that are pending before the learned Special Court No.1, Lahore ("the learned Special Court"), constituted under the Offences in respect of Banks (Special Courts) Ordinance, 1984. It is also admitted that the original record pertaining to the accounts or the respondents maintained by the petitioner bank is lying with the learned Special Court and the legal issue involved in the Revision Petitions is identical as challenge has been laid by the petitioner bank to orders of even date i.e., 26.07.2022 ("the impugned order") passed, in identical terms, by the learned Trial Court whereby the applications filed by the respondents, in their respective suits, for leading secondary evidence, in respect of the record submitted with the learned Special Court, have been allowed. Hence, for all intents and purposes, common questions of law and fact are involved the stance of the petitioner bank against the respondents who are members of one family, which fact is not denied by the petitioner bank as well. Therefore, it would be appropriate to decide the Revision Petitions jointly through a consolidated judgment, however, in this judgment, for facility of reference, source shall be the case file of Civil Revision in hand hearing No. 466/2022.
Here it is also pertinent to observe that initially, Civil Revision No.466/2022 as well as Civil Revision No.467/2022 were filed before this Court whereas the remaining Revision Petitions hearing Nos.809/1012, 810/7022, 811/2022, 812/2022 and 813/2022 were filed before the learned Revisional Court below because of difference in pecuniary jurisdiction, on account of difference in amount claimed in the suits, however, vide order dated 07.12.2022, with the consent of learned counsel for the parties, the Revision Petitions filed before the learned Revisional Court below have been transferred to this Court for hearing, and decision along with the Revision Petitions filed before this Court in order to rule out the apprehension of conflicting judgments.
3. Learned counsel for the petitioner bank submits that the impugned order is patently illegal and contrary to the facts as well as law inasmuch as the learned Trial Court, while dealing with the matter in a whimsical manner, has erred in law and ignored the important aspect that the applications filed by the respondents for leading secondary evidence had already been dismissed by the same Court, vide earlier order dated 28.06.2021, which was never challenged by the respondents as a result of which the same has attained finality. Therefore, the impugned order amounts to review of an issue which already had attained finality, therefore, the second application on the same subject was impermissible and being so, the impugned order is not sustainable in the eye of law. Places reliance on "Muhammad Sharif through Legal Heirs and 4 others v. Sultan Hamayun and others" (2003 SCMR 1221) in support of his contention. Adds that the learned Trial Court has straightaway invoked the provisions of Article 76 of the Qanun-e- Shahadat Order, 1984 ("the QSO") without giving weightage to the provisions contained in Article 77 of the QSO as no notice was served upon the petitioner bank. Further asserts that the provisions of both the said Articles of the QSO are intertwined and have to be read conjunctively, which the learned Trial Court has failed to do. Places reliance upon the dictum laid down by this Court in case titled "Messrs Expeditor International Pakistan (Pvt.) Ltd. v. Messrs Sitara Textile Industries Ltd. and 2 others" (2018 CLC 994) in which it has been held that as per the requirement of law, before permitting to lead the secondary evidence, the fact regarding loss of original documents was required to be proved and by not doing the same, even if the secondary evidence was produced, it becomes useless vitiating all the proceedings built on such secondary evidence.
4. Conversely, learned counsel for the respondents submits that admittedly, the respondents have instituted the suits for recovery of money along with damages with the averments that the respondents were maintaining their accounts with the petitioner bank from which their amounts have been siphoned off and admittedly, the original record pertaining to the accounts of the respondents that was earlier in the possession of the petitioner bank is now lying with the learned Special Court from which the same cannot be summoned and therefore, the learned Trial Court has rightly passed the impugned order allowing the respondents to lead the secondary evidence.
As regards respondent No.2, Office report indicates that he is confined in Adiala Jail, Rawalpindi pursuant to the criminal case registered by the petitioner bank and his service was effected through the officials of the said jail, however, no one has tendered appearance on his behalf land hence, he is proceeded ex-parte. Even otherwise, respondent No.2 has not contested the applications of the respondents before the learned Trial Court either in the earlier round or in the present round of litigation.
5. Arguments heard. Record perused.
6. The factual itinerary of the case spelled out above and the submissions of learned counsel for the parties bring forth the controversy to answer the question as to whether the learned Trial Court was justified in allowing the respondents to lead secondary evidence in the instant case without the service of notice under Article 77 of the QSO, more particularly, when earlier applications of the respondents with the same prayer in their respective suits were dismissed and said order was not challenged by the respondents.
7. Before rendering opinion on the above stated question, it would be in the fitness of things, for the sake of understanding and clarity, to have a look at the proceedings that look place after the institution of the suits in which the petitioner bank filed contesting written statements where after the issues were framed and the cases are admittedly fixed for recording of evidence of the respondent/plaintiffs. On 17.02.2020, the learned Trial Court accepted the applications of the respondents for summoning of the original bank record pertaining to the accounts of the respondents. However, the said order was not complied with, rather application for recalling of the said order was filed by the petitioner bank on the ground that the original record has been submitted with the learned Special Court and the said application remained pending. During the pendency of the application filed by the petitioner bank for recalling of order dated 17.02.2020, applications for leading secondary evidence were filed by the respondents in their respective suits and the same were dismissed, vide separate order of even date 28.06.2021, with the following observation: (Emphasis supplied)
Thereafter, the learned Trial Court passed the following order granting permission to the respondents for leading secondary evidence: (Emphasis supplied)
Perusal of order dated 14.07.2021 reveals that the same was passed by the learned Trial Court with the consent of the petitioner bank as no objection to lead secondary evidence was raised by the latter, however, it was challenged by the petitioner bank by filing Civil Revisions bearing Nos.426/2021, 417/2021, 1/2022, 2/2022, 3/2022, 4/2022 and 5/2022 on the ground that there was no reason with the petitioner bank to give consent allowing the respondents to lead secondary evidence inasmuch as earlier, the petitioner bank vehemently opposed the same and applications of the respondents were dismissed vide orders of even date 28.06.2021 in their respective suits, and the said Civil Revisions were allowed by this Court, vide order of even dale 13.06.2021, in the following terms: "2. Today, during the course of deliberation, when learned counsel for respondent No.1/plaintiff was apprised to the said affidavit, he being fair enough has raised no objection for acceptance of cited petition and setting aside of impugned order, provided learned Trial Court be required to re-decide afore-noted application on its own merits besides decision of the main suit within specified time, which request being genuine and suitable to his clients has not been opposed by learned counsel for the petitioners. Consequently, this petition is allowed, impugned order dated 14.07.2021 is hereby set aside, directing learned Civil Court to re-decide the application made for secondary evidence per its merit under law without being influenced by order dated 28.06.2021 obviously while considering objections/defence of the other side as well. This said Court is also directed to accelerate trial proceedings to culminate main suit within next suit within next six months positively, even by conducting proceedings on day to day basis, if need be."
(Emphasis supplied)
8. The above discussion is so succinct as to unsuccessfully wind up the case of the petitioner bank regarding the earlier dismissal of the similar applications and the argument that the impugned order amounts to review of the earlier order of dismissal of the applications of the respondents to lead the secondary evidence. It is in the proceedings that took place in the light of order dated 13.06.2022 passed by this Court that the learned Trial Court has passed the impugned order. It is evident that this Court, in order dated 13.06.2022, has already observed that the applications of the respondents for leading secondary evidence would be re-decided without being influenced by order dated 28.06.2021. Thus, order dated 28.06.2021 was not to be weighed while re-deciding the applications in question. Even otherwise, it is to be noted that the plea of the respondents seeking permission to lead secondary evidence was not conclusively rejected by the learned Trial Court in its order dated 28.06.2021. Rather, when order dated 28.06.2021 was passed, the facts and circumstances or the cases were different at the relevant time inasmuch as the petitioner bank was directed by the learned Trial Court to produce the record, vide order dated 17.02.2020 and hence, it was felt by the learned Trial Court that the applications for permission to lead secondary evidence were without lawful ground/reason or premature at that point of time. However, when the petitioner bank itself showed its inability to produce their own original record pertaining to the accounts of the respondents, which now is admittedly lying with the learned Special Court, the second/fresh application was not barred and the impugned order passed thereon does not amount to review of the earlier order because of the changed circumstances. This aspect alone deflates the argument of the petitioner bank completely that the learned Trial Court has reviewed its earlier order and is without any force, hence, the same is not sustainable.
9. Adverting to the central question involved in the lis, it is noted that Article 74 of the QSO deals with and defines the mode of secondary evidence while Article 76 thereof provides the cases and circumstances in which the secondary evidence may be led. Article 77 of the QSO contemplates rules as to notice to produce secondary evidence. For ease or reference, relevant excerpts from Articles 76 and 77 of the QSO are reproduced hereunder: "76. Cases in which secondary evidence relating to document may be given. Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it; and when, after the notice mentioned in Article 77, such person does not produce it;
(b) .....
(c) .....
(i) when an original document forming part of a judicial record is not available and only a certified copy thereof is available, certified copy of that certified copy shall also be admissible as a secondary evidence.
In cases (a), (c), (d) and (e), any secondary evidence of the contents of the document is admissible.
77. Rules as to notice to produce. Secondary evidence of the contents of the documents referred to in Article 76, paragraph (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the court thinks fit to dispense with it:
(1) .....
(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court."
(Emphasis supplied)
Bare perusal or the above referred provisions leaves no doubt or ambiguity about cases where service of notice under Article 77 of QSO is mandatory. The petitioner bank has put forth its case on fundamentally wrong premises. It has been emphatically canvassed it the bar by learned counsel for the petitioner bank that the impugned order falls through on the ground of failure on part the respondents to serve notice upon the petitioner bank in terms of Article 77 of the QSO. However, this argument dies down in view of the mandate envisaged under Article 77, which, in unambiguous terms, provides that notice under Article 77 is required only in such cases that fall under clause (a) of Article 76 and not cases falling under other clauses thereof. The petitioner bank itself took up the position that the documents sought by the learned Trial Court earlier and now sought to be produced as secondary evidence by the respondents are not in the possession of the petitioner bank rather form part of the record of the leaned Special Court. It has not been refuted by the Petitioner bank that the respondents have obtained certified copies of the original record of the petitioner bank submitted with the learned Special Court. This in itself takes the facts of the case also under the umbrella of Article 76(i) and production of documents falling under the said category have no nexus with notice under Article 77.
10. Keeping in sight the above referred legal position regarding permission to lead secondary evidence, it is very much evident that the requirement of notice to be issued is relevant in a situation when a document is required to be produced from the possession of a person and in the instant case, the documents are no more in the possession of the A petitioner bank and have been submitted in the case pending before the learned Special Court. In the circumstances, the argument of learned counsel for the petitioner bank that no notice has been issued is misconceived hearing in mind proviso No.6 of Article 77 of QSO, which provides that notice shall not be required in order to render secondary evidence admissible when the person in possession of document is out of reach of or not subject to the process of the Court. Even otherwise, filing of an application to produce the original record of the accounts of the respondents, maintained by the petitioner bank, amounts to a notice on which the order was passed by the learned Trial Court that has never been complied with by the petitioner bank for the reason that the said record is no more in custody of the petitioner bank and in this manner, the requirement of issuance of notice, even if assumed to be applicable in the instant case, has been met with. Moreover, the case of the respondents also falls under purview of proviso No. 2 of Article 77 of the QSO inasmuch as from the nature of the case filed by the respondents for recovery of amount purportedly siphoned off from their bank accounts maintained by the petitioner bank, the latter, as an adverse party, must know that it will be required to produce the original record maintained by it. Examining the matter from this angle also propels to conclusion that the petitioner bank has no case to lay challenge to the impugned order.
11. Insofar as the reported judgments relied upon by learned counsel for the petitioner bank are concerned, suffice to state that the same are settled elucidations of law on the subject, however, the same are not applicable to the lis in hand in view of the above-mentioned distinguishable facts as well as peculiar features and circumstances of the case in hand.
12. This Court is cognizant of the fact that the general rule is to provide the primary evidence to the Court, whereas the provision of secondary evidence to the Court is the exception to the general rule, permissible only in special circumstances and it is not to be allowed in a routine but meant for the purpose of ensuring that in a genuine case of hardship and need, the same can be invoked allowing a litigant to lead secondary evidence. Where a person is unable to bring original documents despite reasonable efforts, the Court is competent to admit secondary evidence for which the Court is to satisfy itself that sufficient ground has been made out for admission of the secondary evidence and such discretion is to be exercised keeping in view the parameters and dynamics laid down in Article 76 of the QSO. The learned Trial Court has encapsulated the legal position as well as the factual matrix of the case in the impugned order and allowed the applications of the respondents by putting forth cogent reasons in the following terms: "2....the defendants/respondents have contested the petition in hand vehemently and prayed for its dismissal. But, these defendants/respondents themselves have maintained in their written reply to the present petition that the original record is not in their possession, rather same is available with the Special Court No. 1 (Offences in Banks), Lahore, in connection with trial in case FIR No. 5/2016 dated 17.03.2016 under sections 409, 420, 468, 471, 109, P.P.C. The learned counsel for the petitioner/plaintiff also submits before the court that the petitioner/plaintiff has obtained certified copies of this record and she be allowed to produce the same. Further, under Article 76(a) of Qanun-e-Shahadat, 1984, when the Original is shown or appears to be in the possession or power of the person against whom the document in sought to be proved, or of any person out of reach of, or not subject to the process of the court; or of any person legally bound to produce it; and when after the notice mentioned in Article 77, such person does not produce it, and likewise, Article 76(a) of Qanun-e-Shahadat, 1984, provides that when the original is a public document within the meaning of Article 85, the secondary evidence can be produced. As the Special Court No. 1 (Offences in Banks), where the documents are allegedly lying situates in District Lahore, and is out of the reach of instant court and is also superior in rank to the instant court, therefore, it seems quite impossible to summon aforementioned record. Moreover, the defendants/respondents had already been given so many directions to produce the record but they remained fail to comply with the order of the court and also shown their inability to produce the same in the written reply of present petition, therefore, in order to avoid further delay and considering the reasons stated above, the petition in hand is accepted and the petitioner/plaintiff is allowed to produce secondary evidence of aforementioned record."
(Emphasis supplied)
13. The case or the petitioner bank is devoid of merit from another perspective as well. The underlying object and purpose of Article 76 is to help adjudication of the disputes without delay and the petitioner bank intends to deflect the proceedings exactly against the object and purpose of the law. If the trial of the suits instituted by the respondents is made to wait for the result of the proceedings initiated by the petitioner bank and pending before, learned Special Court so that the original record is received back from the said Court, it would defeat the ends of ensuring speedy justice to the respondents. The law has precisely envisaged such like situation to grant permission to a litigant to lead secondary evidence so that the process of administration of justice and timely adjudication of dispute is not hampered where original evidence is either not available or cannot be tendered without delay in the proceedings.
14. Taking into consideration the above referred facts and circumstances of the case in hand, this Court feels no hesitation to hold that the respondents have made out a prima facie case and deserve the permission to lead secondary evidence and the learned Trial Court has rightly allowed the applications of the respondents to lead the secondary evidence. Therefore, the Revision Petitions arc devoid of any merit and hence, the same are dismissed, with no order as to cost.