AHMAD NADEEM ARSHAD, J. Through this constitutional petition filed under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973, the petitioners have called in question the validity and legality of judgment/order dated 12.12.2009, whereby, while accepting application of the respondents, the learned trial Court de-exhibited Exh.P.1 to Exh.P.6 and judgment dated 07.05.2011 passed by learned Revisional Court, whereby, revision petition filed by the petitioners against said judgment/order was dismissed.
2. Facts in brevity are that predecessor of the petitioners namely Mst. Irshad Bibi instituted a suit for declaration titled as "Mst. Irshad Bibi v. Aziz-ur-Rahman and others" and sought declaration that being sole legal heir of Abdul Karim Khan son of Aziz Khan she is owner in possession of his entire legacy and the oral sale Mutation No.226 dated 15.06.1943 in favour of predecessor of defendants Nos.1 to 07 namely Muhammad Easa is against facts and law, forged, fictitious, without consideration, without delivery of possession and the subsequent mutations are also liable to be set aside. Suit was contested by the respondents/defendants through written statement. The learned trial Court, keeping in view divergent pleadings of the parties, framed necessary issues and invited the parties to produce their respective evidence. Predecessor of the petitioners namely Irshad Bibi appeared as P.W.1 and got examined Abdul Rauf Qureshi as P.W.2. On 18.07.2009 in presence of learned counsel for the parties, eight documents were produced and exhibited as Exh.P.1 to Exh.P.8 on behalf of plaintiff. The respondents moved an application on 16.10.2009 for rejection/de-exhibit of documents Exh.P.1 to Exh.P.6 by stating that plaintiff's counsel in absence of their counsel got exhibited such documents which were neither mentioned in the plaint nor relied upon in her list of reliance. Contesting written reply was filed. The learned trial Court vide judgment/order dated 12.12.2009 accepted the application and de exhibited the documents Exh.P.1 to Exh.P.6 on the ground that the plaintiff failed to mention the said documents in the list of reliance, therefore, she violated the provision of law by exhibiting said documents. Being aggrieved, predecessor of the petitioners filed revision petition which was dismissed on the same grounds vide judgment/order dated 07.05.2012. Being dissatisfied, legal heirs of plaintiff filed instant Writ Petition.
3. This Court vide order dated 09.08.2011 admitted the Writ Petition for regular hearing and called upon the respondents by issuing notices. Although, power of attorney has been filed on behalf of some of the respondents but it has been withdrawn subsequently. Notices were again issued but no one appeared on behalf of respondents, insptie of publication in the newspaper, therefore, respondents were proceeded against ex-parte vide order dated 22.02.2022.
4. I have heard the learned counsel for the petitioners at length and perused the record with his able assistance.
5. It is matter of record that learned counsel for the predecessor of the petitioners -produced documentary evidence in presence of learned counsel for respondents, which was got exhibited as Exh.P.1 to Exh.P.8. Presence of the learned counsel for the parties was marked by the learned trial Court on 18.07.2009. No affidavit of learned counsel for the defendants is available to the effect that on the fateful date i.e. 18.07.2009 he was not present at the time of producing the documentary evidence from the plaintiff's side. The presumption of due course and correctness is attached to the proceedings of the court which is official record. However, such presumption is rebuttable but vague and meager evidence could, not rebut such presumption. For reference, "Haq Nawaz v.
Shera and others" (1985 MLD 494). Strong and un-impeachable -evidence would be needed to rebut such presumption. Giving preference to mere ballad assertions or affidavit over judicial proceedings recorded by a Presiding Officer, if adopted, would lead to a large number of complications. Reliance is placed upon "Fayya z Hussain v. Akbar Hussain and another" (2004 SCMR 964).
"There is always a presumption of correctness in favour of judicial proceedings and credibility is attached to the proceedings before a judicial forum. Strong and impeachable evidence is required to rebut the presumption."
Therefore, it cannot be said that the documents were got exhibited in absence of learned counsel for the defendants.
6. Perusal of record shows that learned counsel for the predecessor of petitioners produced copy of Jamabandi for the year 1927-28 with regard to Khata No.120 as Exh.P.1, copy of Jamabandi for the year 1947-48 with regard to Khata No.136 as Exh.P.2, copy of Jamabandi for the year 1938-39 with regard to Khata No.134 as Exh.P.3, copy of Jamabandi for the year 1938-39 with regard to Khata No.156 as Exh.P.4, copy of Jamabandi for the year 1974-75 with regard to Khata No.178 as Exh.P.5, copy of record of right for the year 1993-94 with regard to Khata No.306 as Exh.P.6, copy of Jamabandi for the year 1998-99 with regard to Khata No.318 as Exh.P.7, copy of mutation No.807 dated 07.10.2000 as Exh.P.8.
7. It is evident from perusal of list of reliance documents that predecessor of the petitioners/plaintiff relied upon certified copies of record of rights from the year 1946-47 to 1985-86, certified copy of record of right for the year 1993-94 and some other-important documents . Meaning thereby, the plaintiff has relied upon Exh.P.2, Exh.P.4 and Exh.P.6. The learned Courts below failed to consider that very important fact while passing the impugned judgments/orders.
8. Now the questions are whether the documents which were neither produced at the time of institution of the suit nor relied upon in the list of reliance, can be produced at the subsequent stage of the proceedings and secondly the Court can de-exhibit the documents at any subsequent stage which exhibited without any objection.
9. If a party relying on any document, he should have filed the same along with the plaint, and if he relies on any other documents, whether or not in his possession or power, as evidence in support of his claim then such documents are required to be entered in a list to be added or annexed to the plaint as provided in Rule 14 of Order VII C.P.C., which reads as under: - "14. Production of document 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.
List of other documents.--(2) Where he 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 lilt to be added or annexed to the plaint."
Otherwise he should have produced all the documentary evidence of every description in his possession or power, at the first hearing of the suit on which he intended to rely as required under Order XIII, Rule 1 C.P.C. which 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 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.
(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."
As far as non-filing of documents along with the plaint or at the first hearing of the suit, it has never been considered fatal in view of provision of Order XIII, Rule 2, C.P.C. which empowers the Court to receive documentary evidence at subsequent stage of trial. For reference "Anwar Ahmad v. Mst.
Nafis Bano through Legal Heirs" (2005 SCMR 152). For convenience Order XIII, Rule 2, C.P:C. is reproduced 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."
That Provision of law laid down that no documentary evidence in possession or powers of any patty which should have been but has not been produced in accordance with the requirement of Rule I shall be received at any stage of the proceedings unless good cause is shown to the satisfaction of the Court for non-production thereof and the Court receiving any such evidence shall record the reasons for doing so. For reference "Rab Nawaz and 8 others v. Muhammad Amir and another" (1999 SCMR 951). The object of Order XIII, Rule 2, C.P.C. is not to penalize the parties for not producing the documents in time but to provide an opportunity to produce evidence which party for some good cause could not produce well within time. The evidence should not be shut- out to, exclude the documents generally except where they are apparently suspicious, forged or fabricated, so as to prevent fraud.
10. There are two relevant stages relating to bringing the documents on record. The first stage is to produce or file a document at the time of filing of the plaint and the second when it is tendered in evidence. The legislative intent in vesting discretion in a Court to receive documents in evidence and making them part of the record. Discretion is, therefore, vested in the trial Court to extend the time for producing documents even after the first hearing. There is also no requirement for filing a formal application so as to seek leave of- the Court in order to produce a document.
11. There is no cavil with the proposition that a document can be produced in evidence which is always subject to admission as required under Article 78 of the Qanun-e-Shahadat Order, 1984.
The Courts are vested with the authority and jurisdiction to ascertain the genuineness and authenticity of any document in order to arrive at just and fair conclusion on the touchstone and parameter laid down in the said Article. The respondents/defendants failed to raise any objection before the learned trial court at the time of exhibition of such documents. The documents having been marked as exhibited documents became admissible in evidence. It is settled law that when a document has been exhibited in evidence without any objection and the same was allowed to be brought on record by the court could be deemed as proved in all respect. The party not objecting for production of such documents in court would be presumed to have waived such objection.
However, the court is not prevented from adjudicating its nature, whether it is valid or not, or whether it is fake or not. For reference "Muhammad Akram and another v. Mst. Farida Bibi and others" (2007 SCMR 1719), "Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan" (1989 SCMR 704), "Muhammad Farooq v. Abdul Hameed Siddique and others" (2014 SCMR 630) and "Muhammad Iqbal v. Mehboob Alam" (2015 SCMR 21).
12. With regard to second question that whether the Court can de-exhibit documents, I have noticed that the expression of de-exhibit is not defined nor mentioned in the Code of Civil Procedure. Although Rule 3 of Order XIII empowers the Court that it can reject irrelevant or inadmissible documents but it is not the intention of legislation to remove the documents from the record after they have been received and marked as Exhibit. However, the party filing the document is entitled to receive it back as provided under Order XIII Rule 9 C.P.C. Order XIII Rule 4 of the Code of Civil Procedure provides a procedure for marking of a document as an exhibit. For better understanding it is reproduced as under:- "4. Endorsements on document admitted in evidence.---(1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:-
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted: and the endorsement shall be signed or initiated by the Judge.
(2) Where a document so admitted is any entry in a hook, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialed by the Judge."
The provision of Order XIII, Rule 4, C.P.C. is mandatory and if not complied with, the document cannot be considered in evidence as held by the Hon'ble Supreme Court of Pakistan in the case of "Fazal Muhammad v. Mst. Chohara and others" (1992 SCMR 2182).
13. The question of de-exhibiting the documents was exhaustively dealt with by Islamabad High Court in a Judgment "Malik Riazullah v. Mst. Dilnasheen and others" (2018 CLC 1569) in the following manner: - "The expression 'de exhibit' is not defined nor mentioned in the C.P.C. The above discussed provisions refer to the expressions `receive' or 'produce'. Rule 3 of Order XIII, refers to the rejections of irrelevant or inadmissible documents. The scheme of the above mentioned provisions and the legislative intent does not envisage the removing of documents from the record after they have been received or allowed to be produced and thereafter marked as 'exhibits' except under Rule 9 of Order XIII. There is no provision in the C.P.C. for removing a document from the record which has been marked as an `exhibit'. De exhibiting or removing from the record of the trial court is alien to the provisions of the C.P.C. As already noted, merely receiving a document and making it part of the record does not give finality to its evidentiary value and, therefore, by no stretch of imagination does it prejudice the right to a fair trial. The provisions of the C.P.C. are tools for ensuring a fair trial. If documents were allowed to be de exhibited then, despite not causing prejudice to the order party, it would be used for delaying adjudication of the suit. This definitely would have provided an opportunity to delay the proceedings besides the exercise being futile.
Rejection of documents under Rule 3 Order XIII of C.P.C. is before receiving or marking them as exhibits. The expression 'de exhibit' or power vested in the trial Court in this regard would be reading in the C.P.C. something not provided therein by the legislature."
14. The prime object of the Court is to do justice among the parties and not deny the relief to parties on technicalities, which otherwise they are entitled. Technicalities have to be avoided for proper administration of justice un-less it would be essential to comply with them on the ground of public policy. No prejudice was caused to defendants nor his right to a fair trial was compromised if documents in question remained part of the record. Admittedly, Exh.P-1 to Exh.P-6 are certified copies of revenue record which fall within the scope of the expression "Public documents" under the provisions of Article 85(3) of the Qanun-e-Shahadat Order. 1984 and mere non-mentioning of said documents in the list of relied documents could not be ground for de-exhibiting said documents.
Mere technicalities should not be the basis for penalizing a P party as law always favours the decision of case on merits.
15. For the foregoing reasons, this writ petition is allowed and resultantly, the impugned judgments/orders of learned Courts below dated 12.12.2009 and 07.05.2011 are hereby, set aside and the documents Exh.P-1 to Exh.P-6 would be deemed to be the part of record. However, the respondents/defendants are at liberty to rebut these documents by producing evidence on their turn. Parties are left to bear their own costs.