1. ' This is a revision petition directed against the interim order passed by the learned Sub-Judge, Hattian dated 14-3.1984, whereby the learned Sub-Judge while recording the statement of Ghulam Sarwar Khan, Patwari of Sane Daman circle Tehsil Hattian allowed and exhibited certain documents (official record) pertaining to the land in despite.
2. The main point of the learned counsel for the petitioner is that, under Order XIII, rule 1 6f the C.-P.
2. C., a party has to produce all the documentary evidence of every description at the first hearing of the suit and that there Was no sufficient cause whatsoever for allowing these documents at the stage of evidence.
3. Ham afraid, I cannot subscribe to the views of the learned counsel for the petitioner for the following reasons :-
(1) Order XIII, rule 1, C. P. C. Reads as follow :- "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."
3. ' In rule l of Order XIII, the words "all the documentary evidence of every description in potsesslon or the power" are used and as such it need not be mentioned that the documents sought to be admitted by Mst. Zaini, the non-petitioner before the learned Sub-Judge, were the copy of Jamabandi Fah. P.A./4, the copy of pedigree table EMI. P.A./1 and certain other mutation orders which were available only with the Patwari and were not in possession of Mat. Zaini at the time of the institution of her suit.
(ii) The object behind Order XIII, rule 1 of C. P. C. Is to Aviate the possibility of the parties presenting forged or suspicious documents at later stages of the suit when the points in dispute stand formulated. A party is ordinarily not to be penalized for non-production of documents in time.
4. Therefore, where the genuineness of the document is beyond doubt, it ought not to be shut out of evidence even if produced at a late stage.
5. In this case, the documents pertain to the public record which does not appear to have been forged. The learned counsel for the petitioner cross-examined the Patwari and he will be at liberty to address his arguments about the value or authenticity of this public record before the trial Court.
6. No prejudice has been caused to him.
(iii) The learned counsel for the petitioner, who'represented, the petitioner before the learned Sub- Judge, Hattian, was present when the statement of Ghulam Sarwar Khan Patwari was being recorded. He did not raise any objection when those documents were exhibited. The Patwari was allowed to make a statement pertaining to the said documents and the documents were produced and got exhibited. An objection was, no doubt raised during the statement of Ghulam Sarwar Khan Patwari but after the documents were brought on the file. The learned counsel appearing before the learned Sub-Judge Hattian failed to take any objection when the document was being exhibited. I am reminded of a Persian saying which goes {{URDU TEXT}} ' It means that 'the first which is remembered after the fight is over should be directed towards ones' own head'. The documents have already" been exhibited without the timely objection on.
7. Behalf of the learned counsel for the petitioner who appeared before the learned Sub-Judge, Hattian. The Court is not prevented from adjudicating the true nature, validity, genuineness or otherwise of the documents and the petitioner can argue about the documents when the trial is concluded and the case comes up for arguments before the Court. I do not see any reason why these public documents should be refused in a dispute relating to landed property.
(iv) The petitioner is at liberty to place before the. Court any document or documents in rebuttal because he is entitled under law to lead evidence in rebuttal.
(v) The trial Court has got a wide discretion to allow genuine documents. This discretion has been rightly exercised. It is not proper for me. To 9 interfere especially when it has not been used arbitrarily, capriciously, In an unlawful manner, or contrary to the well-recognised judicial principles.
(vi) It has been held by the superior Courts that the rules relating to filing and admission of documents should be liberally construed in favour of documents being allowed to be filed and put in evidence.
4. As regard to the admission of documents, especially the documents or the Revenue record, there is a plethora of rulings to the effect that such' documents can be admitted even at a late stage in proper oases. The bar contained in Order XIII, rule 1 is not absolute and, therefore, the Courts are permitted under law to use their discretion for the ends of justice and allow documents to be brought on record in proper cases. The rules I and 2 of Order XIII.. C. P. C. Should be road together. The learned Sub-Judges should apply, their minds properly and give their reasons if their allow such documents at a late stage. No hard and fast rules can be laid down and much depends upon the peculiar circumstances of each case. There may be cases in which a public record is produced at a very late stage such as after the evidence of the parties has been closed and even arguments heard, as it happened in the case of Allah Ditto v. A. F. Ahmad (1), in which case a copy of Jamabandi was refused to be admitted. But such cases are rare and the Courts are generally inclined to admit genuine documents such as documents relating to public record even at a late stage if a proper case for their admission is made out.
8. ' I would like to mention the following authorities in support of this view :-
(1) In 47 I C 513, it was held that :- "Documentary evidence which has not-been produced by the first hearing of a suit in accordance with Order XIII, rule 1 of the C. P. C. May be admitted at any subsequent stage at the discretion of the Court."
(ii) Again in ,111-I C 472 it was ruled that "The Court may in its discretion admit documents which are not produced at the first hearing, at if is satisfied that they are, genuine.. Order XIII, rule 2, C. P. C. Was enacted only to prevent fraud by the late production of suspicious documents."
(iii) In Kummar Gopika Raman Roy v. Atal Singh and others (2), Sir John Wallis has held that even where the rule of exclusion applied and the documents cannot be filed without the leave of the Court, that leave should not ordinarily be refused where the documents or official records of undoubted authenticity may assist the Court to decide rightly the issues before it.
9. ' This is a leading case, hence, I would like to reproduce the relevant paragraph from page 103: "This rule of exclusion; however, only comes into operation when the documents on which the parties rely should have been, but were not, produced at the first hearing. Now, according to the evidence at the date of the first hearing, these documents were not in the possession or power of the plaintiff, and the plaintiff and his advisers did not know of their existence so as to enable them to' inspect them and form an opinion as to whether they would rely on them or not. In these circumstances it cannot be said that they should have been produced at the first hearing and therefore the rule does not authorize the exclusion. Further as has been held in India, even where the rules of exclusion apply and the documents cannot be filed without the leave of the Court, that leave should not ordinarily be refused where the documents are official records of undoubted authenticity which may assist the Court to decide rightly the issues before it.
(iv) In !Du and others v. Kan war and others (3), it was observed at page-893 ....................... The acceptance or rejection of the copy in the present case was a matter entirely within the discretion of the Court. This being so, this Court cannot interfere with the exercise of the discretion of the Courts below unless it is satisfied that the discretion has been exercised {{FOOT NOTE}}
(I) PLD 1954 Lab. 608 (2) A R 1929 P C 99
(3) AIR 1933 Lab. 892 {{FOOT NOTE}} ' capriciously, in an arbitrary manner and contrary to well-recognised judicial principles."
(v) In Kanda and others v. Waghu (1), the discretion exercised by the trial Judge was recognised. I reproduce paragraph 9 from page 69 "On the question whether the subordinate Judge erred in refusing to admit the two documents, Mr. Parikh laid stress on the case of Gopika Raman Roy. v. Alai Singh 561-A. 119=AIR 1929 P C 99, where Sir John Wallis, in delivering the judgment of the Board said that where the rules of exclusion apply and the documents cannot be filed without leave of the Court, that leave should not ordinarily be refused where the documents are official records of undoubted authenticity, which may assist the Court to decide rightly the issues before it. It would be erroneous to read these observations as implying that there is no discretion left in trial Court when it is a matter of admitting public records at a late stage. The Court has a discretion and while generally speaking it will admit such evidence, the question must be decided in each case in the light of the particular circumstances."
(vi) In Abdul Aziz v. Abdullah and others (2), the defendant failed to produce a document (gift- deed on which he had relied) at the earliest opportunity and produced it on the day of evidence.
10. He was not allowed the document by the trial Court.
11. ' The High Court in appeal, observed at page 3 that Order XIII, rule 1, C. P. C. Does not exclude the discretion of the Court to receive documentary evidence at the subsequent stage of the proceedings if a sufficient cause is shown for its non-production at the earlier stage.
(vii) In Lahore Improvement Trust v. Messrs Khuda Bakhsh Meraj Din (3), Kaikaus, J. (as then he was) has discussed the Case law for and against this proposition of admission of documents at late stage and admitted all the three documents in evidence on payment of Rs, 50 as costs, to the plaintiff accepting the revision petition. It is an elaborate authority on this subject which may be gone through and followed by the Courts. It was laid down at page 260 :- ' IS Ordinarily authentic documents should not be refused though produced at a late stage. Of course the Court has a discretion in the matter and if the reception of the document was to have a serious delaying effect, the Court would be justified, with due regard to the circumstances of a case, in rejecting the document. One aspect of these judgments is that their Lordships have regarded the authenticity of the document as a very important factor in determining whether it should be admitted in evidence in spite of non-compliance with 0. XIII, rule 1, Civil P. C."
12. ' At page 260-C, it was observed :- "The exercise of discretion is governed in each case by the particular circumstances of that case."
13. ' It was laid down at page 260-B that order refusing to admit a document should be passed only after knowing the nature of the document. Where the Court, under O. X111, rule 2, C. P. C refused to admit documents sought to {{FOOT NOTE}}
(1) AIR 1950 P C 68=PLD 1949 PC 270
(2) PLD 1952 B 3 1 (3) PLD 1956 Lab. 252 {{FOOT NOTE}} be produced by the petitioner (Lahore Improvement Trust), from its record, without knowing the nature of the documents, the order of refusal was set aside on that ground alone by the High Court in revision.
(viii) In Muhammad Bakhtlar Khan v. Qari Bash& Ahmed (1), an important document (Judgment in a previous suit) had been improperly excluded from evidence by both the Courts below. This document was tendered in evidence on the day on which the plaintiff closed his case. The learned Judge (Kaikaus, J.) reiterated the principles laid down in PLD 1956 Lah.
252. He was pleased to observe at pages 807 and 808 :- "Let me explaiu that whenever a document is produced before a Court to the admission of which objection is taken on the ground that it was not relied upon in the list of documents submitted by the party, or that it was not produced at the first hearing of the suit in accordance with Order XIII, rule 1, C. P. C., the Court has to consider :
(1) Whether there are good grounds for the failure to enter it in the list or to produce it at the first hearing.
(2) is there any doubt about the genuineness of the document ?
(3) Will the opposite party be prejudiced by the fact that it had no timely notice of the intention of this party to produce the document and if there be possibility of such prejudice, will there be too great a delay in the conduct of the case by granting the opposite party an opportunity to rebut this document ? Whether the delay will be unreasonable depends on the circumstances of each case."
(ix) In Amir Muhammad Hussain Shah and another v. Ahwal Hussain Shah and others (2), where the plaintiff applied to the Court for permission to produce in evidence copies of mutation at the stage before the date fixed for arguments in the case, it was held at pages 115 and 116 that the court was justified in permitting the production of those documents and had ample discretion to receive the same at any subsequent date (although not produced at the first bearing of the suit) under Order VII, rule 18, C. P. C. I reproduce para. 9 of the judgment which is relevant :- "It will be thus seen that under Order VII, rule 18, C. P. C. The Court has the jurisdiction in appropriate cases to allow the plaintiff to produce document at any time at the bearing of the suit. In Imambandi v. Mutsaddis 45 1 L It 878 their Lordships held that : Order XIII, rule 1 of the Civil Procedure Code, 1908, requires the parties or their pleaders to 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'. But it does not exclude the discretion of the Court to receive any such documentary evidence at any subsequent stage."
(x) timer Hayat v. Nek Adam (3), is an elaborate and lucid judgment of our High Court wherein the Azad Jammu and Kashmir High Court has held that the . Procedural law should receive most liberal construction so to advance the cause of justice as compared to technical justice. Admission of document is essentially a procedural matter and therefore a document cannot be refused to be admitted if produced at a late stage. A party which is at fault can, however, be burdened with reasonable costs.
14. ' Khawaja Muhammad Yusuf Saud, C. J. (as then he was) had discussed the considerations weighing with the Courts in allowing or refusing to allow {{FOOT NOTE}}
(1) PLD 1957 Lah. 803 (2) P L D1966 (W. P.) Pesh.
15. 113.
(3) P 1,15 1977 Azad J & 1678, {{FOOT NOTE}} production of documents not produced at the first bearing. After discussing a plethora of authorities, especially AIR 1928 Pat. 537, AIR 1929 Pat. 324, AIR 1930 Pat. 603, AIR 1961 Pat. 242, AIR 19 8 Rang. 196, AIR 1940 Madr. 540, A 1 R 1961 Madh. Pra. 348, AIR 1929 P C 99, AIR 1946 Nag. 377, AIR 1935 Lah. 645, PLD 1961 Lab, 643, he observed at page 85 "The consideration that may, therefore, in my view, weigh with the Courts in the matter, should be :
(1) Judge should not be tied up to any particular line. The Legislator has thoughtfully made him the Judge of the situation. His power should be left unfettered to be exercised in the circumstances of each case ,
(2) The Rule needs to be interpreted liberally because it is an enabling provision intended for the advancement of Justice ;
(3) Admission being generally wise, may be the Rule and refusal an exception, provided of course, the document is, prima facie, genuine because admission would do no harm as its reliability and effect are to be determined later when it can be held to be of no value on consequence, but in case of rejection its value or importance will never be known and may result in injustice. It would be in accord with the maxim : Abundons cautela non nocet (Great caution does no harm);
(4) Merely because it was the misfortune of the party not to bay produced the document at the first hearing or merely because the existence of the document was within his knowledge or by employing due diligence its existence could be known, should not, by itself, b pushed to the extent of disenti1ing him to consideration. One or the other argument can be available in every situation and yet the Rul has been enacted for application. The question as to whether the delay was reasonably explained can best be decided by determining whether the non-production was attributable to human failing or whether it was out of a bad motive. The Court may ask itself :-
(1) Did the defaulter reap any real benefit out of its non-production is far ?
(2) Would it prolong the trial and if so, which one should, in the circumstances of the particular case, be allowed to outweigh the other ; Earlier disposal of the case or the admission of the document ?
16. (3). Is the document absolutely free from any suspicion of being fabricated ?
(4) Whether loss of case by the party, occasioned by refusal to admit documents, would appear as an excessive penalty for their late on Suction :
(xi) In United Bank Ltd. Karachi v. Shabbir Ahmed Abbasi and another (1), Nasir Aslam Zahid, J., has, after discussing relevant authorities, laid down the following principles for production and rejection of document, in para. 37 which is reproduced below ?
17. "On a review of the judgments on Orders VII and XIII, C. P. C. Cited be the learned counsel and discussed in this order, in my view, the . Following principles can safely be expressed as well-established :-
(i) Under Orders VII and XIII of the Code of Civil Procedure the Court has a discretion to receive or reject documents not listed as require {{FOOT NOTE}}
(1) P L p 1981 Kar. 255 {{FOOT NOTE}} by Order VII, rule 14(2) or filed late and this decision is taken in each case in the light of its particular facts and circumstances ;
(ii) While exercising its judicial discretion to receive or reject documents, the Court will liberally construe the procedural provisions of Orders VII and XI H, C. P. C. In favour of reception of documents rather than their rejection ; (iii)The object of Order VII, rule 18 and Order XIII, rule 2 is not to shut out or exclude documents generally. The object is to exclude documents which are apparently suspicious, forged or fabricated, and to expedite the trial ; (iv)Unless it is a consent order, the Court in its decision, rejecting or allowing the reception of documents, will record reasons.
18. (xi In Shabbir Ahmed Abbasi v. United Bank Ltd. Karachi and others (1), the question of production of certain documents at a belated stage arose in two identical appeals and a D. B. Of Karachi High Court observed at page 600 .- "On an appraisal of the various provisions of law quoted in the foregoing paragraphs, as also the cases, which have been referred to in the order, the scheme of the Code appears to be that the plaintiff shall produce the document upon which he sues alongwith the plaint, and he should also enter such documents, on which he relies in a list .t be annexed to the plaint. Again, Order VII, rule 18, C. P. C. Provides that, if such documents, as required to be filed, or, to be mentioned in the list, as provided by Order VI, rule 14, C. P. C. Are not so produced, or, mentioned in the list, then such document shall not be received in evidence without the leave of the Court. But Order XIII, rule 2, is a provision, which provides a mode for curio the non-compliance with the provisions of Order VII, rule 14 an Order VII, rule 18, C. P. C. The rule is in the nature of an exception; providing that, a good cause being shown to the satisfaction of the Court for non-production of the document at the earlier stage, the Court may receive such evidence on record. The Court, in that case, has got to record reasons for the order. The position clearly is that mere non-compliance with Order VII, rule 11, or Order VII, rule 18 C. P. C. Would not defeat the right of the plaintiff to produce to documents at a belated stage. No doubt, an order of that nature will not be made as a matter of course, but has to be governed by sound judicial discretion. The relevant considerations are the ability, or, otherwise of the plaintiff to produce the document at the proper stage, reason for non-production being good, or, bad, the nature and authenticity of the document itself, and whether an intention on delaying proceedings is to cause for default; One predominant consideration would also be the interest of justice in the case, which will have to be kept into consideration by the Courts in circumstances of such separate case."
19. ' The next paragraph runs :- "Applying the above test to the instant case, we find that the learned Single Judge has exercised his discretion judicially and consistently with what the interest of justice demanded. The suits were for substantial amount, and it is not the case of the appellants that these documents have been forged, or,. Created at a late stage for sustaining {{FOOT NOTE}}
(1) PLD 1981 Kar. 596 {{FOOT NOTE}} the suit, or, for creation of false evidence. The application for reception of the documents was also made at the time when the suits were a the stage of recording evidence, and therefore it could not be said that respondent No, I plaintiff was interested in delaying the disposal of the suits."
(xiii) In Muhammad Hussain and others v. Settlement Commissioner, Lahore and others (1), Mr. Justice Irshad Hassan Khan, J. Observed at page 144 :- "The rationale behind this rule is to prevent fraud and not to penalise-parties for non-production of documents in time. The Court has a discretion in the matter which is to be exercised on sound judicial principles, depending upon the facts and circumstances of each case. *In the instant case, the respondents had no opportunity to produce this documentary evidence before the Rehabilitation Commissioner, / being not part of the proceedings. If the said documents are authentic. Rule 2 of Order Kill, C. P. C. Should not be allowed to bar its production, inasmuch as, the consideration of these documents is necessary for determining the real controversy involved in this case i,e, the ownership, nature and character of the property, in dispute, a the relevant time."
(xiv) In the case of lqbal Ahmed Khan Lodhi v. Mirza Muhammad Ajmal Second Appeal (2), the learned Saeeduzzaman Siddiqui, J. (Karachi) held that certain documents (Exhs. P. 3 and P. 4) were rightly admitted in evidence by the trial Court. It was contended that the two documents were not mentioned in the list of documents relied upon and as such cannot be admitted.
20. ' The learned Judge observed at page 63 "I may on the very outset point out that on account of non-production of the copy of a document with the plaint or non-mention of the same in the list of documents, relied upon, the document does not become inadmissible in evidence. The effect of such an omission on the part of plaintiff will be that he cannot produce the document at the hearing of the suit except with the permission of the Court. Such permission of the Court may either be expressed or implied as the circumstances of the case may admit."
21. ' At page 64 it is observed "The documents having been admitted in evidence without any objection from the appellant befole the trial Court cannot now be disregarded on the ground that they were produced in contravention of rule 18 of Order VII, C. P. C. Even otherwise, in the circumstances of the case these documents shall be deemed to have been admitted in evidence with the implied leave of the Court."
22. ' The second appeal was dismissed with costs.
5. Let me observe here that although we have to do justice according to law we cannot shut our eyes and follow the procedural law blindly. All procedural rules are subservient to the ends of justice and hence we have to {{FOOT NOTE}}
(1) PLD 1984 Lab. 139 (2) PLD 1983 Kar. S01 {{FOOT NOTE}} see that the ends of justice are not defeated. I am fortified in my view, by the following authorities
(I) In Imtiaz. Ahmed v. Ghulam Ali and others (1), Kaikaus, J. (as then he was) observed at page (399 & 400)
23. "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. 1 think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to the extent. The ideal must always be a system that gives to every person what is his."
(ii) In Toor Gul v. Mst. Mumtaz Begum (2), the relevant observation from page (13)C, is reproduced below :- "The rules framed in the Code of Civil Procedure are rules made for the advancement of justice and they should not, as far as possible, be allowed to operate so as to defeat the ends of justice. If we were to accept the highly technical view taken by the High Court in the present case, then it would result in making it extremely difficult for people living in the interior of the country to appoint pleaders to represent their case at the District Headquarters where Courts are usually situated.
24. These rules are in the nature of enabling provisions and substantial compliance with them should be enough."
(iii) As held by our own High Court in PLD 1977 Azad J & K 78 referred to above :- n .
25. "Admission of documents is essentially a procedural matter. Procedural rules are intended to provide a uniform manner of seeking relief, so that litigants are spared of hazarding guesses as what to do and at the same time provide against conflicting procedures, that would have flowed if each litigant were left to his own ingenuity. Obviously Therefore, it was never meant to obstruct justice on respective merits of the conflicting claims of the parties to a litigation. Procedural law should therefore, receive the most liberal construction so as to advance the cause of real justice as compared to technical justice. It was held in 9 Cal. 763, 21 Mad. 373, AIR 1930 Cal. 53, AIR 1946 All, -125, AIR 1930 Cal. 53, PLD 1963 SC 382 and PLD 1965 SC 691, that the Code being a procedural law, ought to be construed liberally and as far as possible, technicalities should not be allowed to defeat the ends of justice. It was held in AIR 1945 All. 811 that procedure was merely a machinery and its object was to facilitate and not to obstruct the administration of justice. It was held in PLD 1972 SC 9 that Rules should not be interpreted so as to defeat the ends of justice "
(iv) The learned Chief Justice of our own Supreme Court Ch. Rehim Dad Khan (as then he was) has expressed the same view in Abdul/ah v. Faqirullah (3). {{FOOT NOTE}}
(1) P L D1963 SC 382 (2) PLD 1972 SC 9
(3) P I) 1978 C (A .1 & K) 135 {{FOOT NOTE}} ' The relevant portion of the judgment from, page 139 is given below :- "Moreover, to set up the very judgment that has been appealed against as a bar, being mere technicality, should not normally be allowed to prevent the Courts from doing substantial justice between the parties on grounds that are equitable. "
6. Under these circumstances, the learned Sub-Judge, Hattian has rightly admitted the documents (which prima facie appear as genuine public documents) to advance the ends of justice. The technicalities of procedure J are to be overlooked because our main objective is the administration of justice.
26. ' The upshot of the above discussion is, that finding no force in this revision petition, it is hereby dismissed in limine.
27. However, before parting with this case, I would remark that when a learned Presiding Officer of the Court is unwell and cannot record the statements of witnesses in his own hand, be shall make a memorandum of the substance of . What each witness deposed and such memorandum shall be written and signed by the Judge and shall form part of the record as provided under Order XVIII of the Civil Procedure Code.
28. ' I have seen that the memorandum as regards to the statement of Patwari Ghulam Sarwar Khan is a bit defective, hence I have been constrained to make this remark. I hope the learned Sub-Judge shall be careful in future to follow the correct procedure.