' This writ petition calls in question the orders, dated 29-3-1983 and 6-8-1984 of the Senior Civil Judge and Additional District Judge, Kasur, respectively, whereby the prayer of the petitioner for leading secondary evidence to prove the contents of a document was refused.
2. The petitioner is the real brother of the only contesting respondent, Sh. Akbar Ali. The petitioner alleged that he and his brother had together with some others jointly inherited the properties in dispute on the death of their father. On 1-11-1974 his brother agreed to sell his share in the joint properties in his favour for a total sum of Rs.25,000, accordingly an agreement to sell was executed by his brother in his favour. As the consideration for the sale was to be paid on some future dates the agreement to sell was retained by his brother and this fact was specifically mentioned in the deed. Later, in accordance with the agreement he paid the entire amount of consideration through three cheques. Despite the execution of the deed and receipt of the stipulated consideration his brother declined to honour the agreement. In the circumstances he sought a decree for specific performance of the agreement or, in the alternative, a declaration to the effect that he was the sole owner of the share of his brother in the properties in dispute.
3. Sh. Akbar Ali, the contesting respondent, denied that he had entered into any agreement with the petitioner to sell his share in the joint properties. He also denied that he had executed any deed in pursuance of the agreement. He described the 'so-called deed' to be a fictitious or a forged document. He admitted that he had received three cheques in the total sum of Rs. 25,000 but alleged that these payments had been made to him by the petitioner in connection with some business dealings.
3. While the suit was pending the contesting respondent moved the trial Court for issuance of a direction to the petitioner to produce the original agreement to sell and counterfoils of the cheques which he had issued in his favour. This was followed by an application by the petitioner to the effect that the contesting respondent be asked to produce the original deed incorporating the agreement to sell. The contesting respondent denied that he was in possession of the said document. By an order dated 12-7-1978 the trial Court declined to record any decision on the application of the petitioner on the ground that a finding at that stage on the point as to which of the parties was in possession of the said document might have the effect of prejudicing the case of one of the parties. However it observed:-[URDU TEXT] (Justify)
' The matter rested at that till the issues were framed and the case reached the evidence stage. On 5-3-1979 the petitioner moved another application before the trial Court requesting that either the contesting respondent be ordered to produce the deed in question or that he should be permitted to lead secondary evidence in that regard. This application was of course opposed by the contesting respondent, who once again described it to be a fictitious of a forged document. By an order dated 15-3-1980 the trial Court rejected the petitioner's application after holding that the document in question was not in the possession of the contesting respondent. The petitioner challenged the order of the trial Court in revision before the District Judge, but later on 19-7-1980, withdrew of revision petition. The statement which he made before the District Judge read as follows:- (Case decided )[URDU TEXT] [URDU TEXT] On 20-12-1981 the petitioner moved another application to produce a photostat copy of the agreement to sell by way of secondary evidence. In the application he reiterated that the original deed was in the possession of the contesting respondent. The trial Court treated this application as one under section 65, Evidence Act and on 29-10-1983 rejected it with the following observation:- "I have gone through the order dated 15-3-1980 and the order passed in appeal. It was declared that the document is not in possession of the defendant. Even otherwise, in the ordinary course of transaction, the document was to be found out in the custody of the plaintiff. The assertion of the plaintiff that the document is with the defendant, cannot be accepted. Hence the secondary evidence of the document on this ground cannot be allowed under section 65 of the Evidence Act.
The petition is rejected."
' The petitioner challenged the order of the trial Judge in revision before the Additional District Judge. By his order dated 6-8-1984 the learned Additional District Judge dismissed the revision petition after holding that the petitioner had failed to establish that the original document was in the possession of the _other party. The petitioner has now approached this Court in writ jurisdiction to challenge the orders of the trial Court as well as of the Additional District Judge.
5. In this writ petition the case of the petitioner is that the trial Court and the learned Additional District Judge have illegally refused to permit him to lead secondary evidence with regard to the contents of the deed incorporating the terms of agreement to sell. It is to be noticed that the circumstances in which a party can be permitted to lead secondary evidence to prove the contents of a document are exhaustively laid down in section 65 of the Evidence Act. Thus, unless the petitioner can bring his case under any of the circumstances listed in that section he cannot be allowed to lead secondary evidence. The case of the petitioner at the trial was that the document was in the possession of the contesting respondent and that despite his demands the contesting respondent was not producing the same in Court, consequently, his case was covered by clause
(a) of section 65, ibid. The said clause reads as follows:- "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 section 66, such person does not produce it."
'In support of his assertion that the document was in the possession of the contesting respondent he referred to a recital in a Photostat copy f the deed. According to the said recital the original deed was to be retained by the contesting respondent. Now, despite this recital the trial Court held that the document in question was not in the possession of the contesting respondent. That being a finding on a question of fact it cannot be reopened in writ jurisdiction. In view of this finding clause (a) ibid becomes inapplicable.
6. The learned counsel for the petitioner then contended that the trial Courts should have treated the present case as one where the document had been lost. In support of this contention he relied upon Muhammad Ishaque v. Erose Theatre PLD 1973 Kar.
522. It may be mentioned that at one stage before trial Court the petitioner took up the position that the deed had been lost. Had he done so his plea would have been examined by the trial Court in the light of the challenge, if any, made by the opposite party. On the other hand the petitioner insisted before the trial Court, despite a finding to the contrary, that the original deed was in the possession of the contesting respondent. Thus the trial Court had no opportunity to examine whether the document should be treated to have been lost. The authority cited by the learned counsel for the petitioner is distinguishable on the ground that there it was found as a matter of fact that the document in question 'appeared' to be in the possession of the opposite party. In the circumstances I am not prepared to permit him to set up a case in writ jurisdiction which is different from the one he canvassed in the trial Courts.
7. For the reasons stated above I do not think that a case for interference in writ jurisdiction has been made out. This writ petition is accordingly dismissed with costs.