' The petition is addressed against the order of Sub-Judge Mirpur passed on August 3, 1989, whereby the learned Sub-Judge signed document Ex. PB, as contemplated under Rule 4, Order 13 of the Code of Civil Procedure.
2. The petition has arisen in the circumstances that plaintiff-respondent brought a suit against defendant-petitioner for the recovery of Rs,6089.37, advanced as loan. The suit was instituted on July 10, 1980. It was averred that Muhammad Aslam Qureshi, defendant borrowed the amount from the plaintiff (bank) with promise to repay the same. On his failure to adjust the loan, the plaintiff felt constrained to bring action against him. The defendant-petitioner repudiated the claim of the plaintiff. The issues were framed on June 6, 1981, when plaintiff (bank) was ordered to lead evidence in support of its claim. On February 28, 1982, as defendant failed to appear, ex parte evidence was recorded and decree ex parte was passed against him. Later on, the ex parte decree was set aside and the plaintiff was asked to lead evidence. On March 7, 1987, Malik Abdur kauf, appeared as a witness. He proved document Ex. PB in his evidence. The document Ex. PB was ascribed to the defendant, as having been written to the plaintiff (bank), assuring payment of the debt. No objection was raised to the mode of proof of the document at the time of the evidence of Malik Abdur Rauf. The document was, thus, admitted in evidence. Somehow, the document remained in possession of the plaintiff (bank), as such the presiding officer omitted to sign or initial it, as required under Rule 4, Order 13. On August 19, an application was moved for permission to place the document on the file of the Court. The application was opposed. The learned Sub-Judge allowed the application as in his view, the omission to place the document on his file, was an irregularity.
Thus, the learned Sub-Judge received the document and also signed the same. This order is the subject of the present petition.
3. Raja Lehrasap Khan, learned Counsel for the petitioner assailed the order of Sub-Judge as ill- founded and bad in law. It was emphasized that it was enjoined upon the plaintiff to produce the document in question with his pleadings or at the stage of framing of issues. Failure to do so, raised a hurdle in ' his way for producing the document at a very late stage. The contention was opposed by Choudhary Muhammad Afzal, the learned Counsel representing the respondent (bank).
4. Rule 14 of Order 7, Code of Civil Procedure, postulates that where a plaintiff sues upon a document in his possession or power he shall produce it in Court when the plaint is presented.
Where he relies on any other documents, irrespective of the fact whether such documents are in his possession or not, as evidence in support of his claim, he shall enter such documents in a list to be annexed to the plaint. In present case, in para. 2 of the pleadings, the plaintiff averred that the defendant promised to return the loan and, as a commitment, executed an agreement on August 7, 1977. The copy of the agreement was appended with the plaint. It was further stated that the original shall be produced at the time of evidence. It appears from the aforesaid situation that the plaintiff complied with the provisions of Rule 14.
5. Order 13, Rule 1, C.P.C. Enjoins upon the parties to produce all the documentary evidence on which they intended to rely, at the first hearing of the suit. Rule 2, postulates that no documentary evidence shall be received at any subsequent stage of the proceedings which ought to have been given earlier, unless good cause is shown to the satisfaction of the Court for non-production thereof. In this case, it is noticed that the document was produced at the time of evidence of the aforesaid witness. It was duly received and admitted in evidence. The witness was cross-examined in respect of the execution of the document, without an objection to the mode of admission of the document in evidence, or for its production at late stage.
6. The objection cropped up at a late stage, when plaintiff applied for permission to place the document on the file of the Court. In such a situation, it has to be determined whether the document can be placed on the file and that it can be signed or initialled by the Presiding Officer in the light of the provisions of Rule 4 of Order 13 of the Code. On going through the statement of Malik Abdur Rauf, it has to be accepted that the witness was produced to prove the document in question in evidence. The witness obviously proved the document and it was marked as Ex. PB. The witness was cross-examined by reference to Ex. PB. Several questions were asked to the witness in respect of the said document. It is, therefore, quite clear that the document was received and proved in evidence without an objection of the defendant for the non-compliance with the provisions of Rules 1 and 2 of Order 13. At this stage, when the document has already been proved in evidence, any objection to its admissibility cannot be entertained.
7. The other aspect of the proposition is that the document contained no initials or signatures on it, as required under the provisions of Order 13, Rule 4. Nevertheless, the document was endorsed as Ex. PB. It appears that the Presiding Officer who recorded the statement of the witness, was negligent in not placing the document on file of the Court, by making necessary initials or signatures. The plaintiff has not to suffer for the negligence of the Court.
' Moreover, the omission being that of a procedure, has to be termed as an irregularity curable in exercise of powers of the Court prescribed under the Code. This view finds support from Muhammad Akbar Khan's case (P.L.D. 1978 S.C. (AJ & K)
6. In that case, to prove waiver the vendee produced document Ex. DA It was formally tendered in evidence and was marked as Ex. DA. But it carried no endorsement of the Presiding Officer nor it was signed or initialled by him. Thus, an objection was raised to the evidentiary value of the document, as in view of the learned Counsel appearing for pre-emptor, the document was not acceptable in evidence. The learned Chief Justice on appraising the factual aspect of the case, repelled the argument in the following manner:- " It would appear that requirement of rule is that when a document is admitted in evidence it must be endorsed by the Judge to record the fact that it has been admitted into evidence after complying with necessary legal formalities. We do not approve the procedure adhered to in this case of making exhibit on the document Ex. DA., in a mechanical manner without proper application of mind and would insist on compliance of the provisions of Order XIII, rule 4 (for which Registrar, Supreme Court shall issue a circular to the Registrar, High Court) but nevertheless, in our opinion, this neglect on the part of the trial Judge would not take away its probative value especially when it had been referred to in arguments and made use of in the judgment. This omission in making an endorsement on the document, in the circumstances of this case, remains only an irregularity."
8. This view again finds support from Hakim Khan's case (PLD 1975 Lah. 1170). In that case, the document relating to gift, was not duly initialled or signed by the Presiding Officer. It was argued that the document could not be examined as evidence in support of the claim of the opposit, party.
The learned Judge repelled the objection as in his view, the omission was merely an irregularity and not an illegality. The relevant observation is as under:-- "Endorsement on documents admitted in evidence--Judge failing to sign and initial documents placed on record--Mere non-endorsement does not render documents inadmissible in evidence- -Omission to mark documents produced by parties--Mere irregularity--Documents placed on record; Court competent to look into and consider, even if documents are not exhibited.
' In an appeal the contention was that the documents on record were not duly initialled and signed by the Court whilst being exhibited and so the judgment and decree delivered in the case were not valid.
' HELD: Mere non-endorsement by the Judge concerned, of the document, does not render it inadmissible."
9. The rules of procedure controlling the proceedings of the Court, are prescribed to enable the Court to administer justice to the parties. The primary object of framing of the rules is to achieve the ends of justice and not to defeat it. Therefore, the Court is vested with inherent powers to rectify any error or mistake and to cure an irregularity in the proceedings carried out by it. Once an omission is found to have been committed by the parties or by the Court, on the satisfaction that the omission, mistake or irregularity was not mala fide, it is enjoined upon the Court to rectify and cure the same in exercise of its inherent powers contained in Sections 94 and 151, Civil Procedure Code.
10. The powers contained in Section 94 of the Code, are attracted to prevent the ends of justice from being defeated when the Court acts in derogation to the prescribed manner. Clause (o) postulates that in order to prevent the ends of justice from being defeated, the Court may, if it is so prescribed, make such other interlocutory orders as may appear to the Court to be just and convenient. In present case, Rule 4 of Order 13 provided the scheme and manner in which document was to be received in evidence. The omission to admit the document in evidence, in derogation to the aforesaid scheme, constituted an omission or irregularity which, of course, was curable in exercise of inherent power of the Court, mentioned above. It is undisputed that in addition to Section 94, the Court enjoyed inherent powers to secure the ends of justice by rectifying the mistake or omission occurred, at its instance or the parties to the proceedings. The principle of inherent powers was enunciated in Manohar Lal's case (AIR 1962 SC 527) in the following manner:-- "It is well-settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression 'if it is so prescribed' in S. 94 is only this that when the rules in 0.39, Civil P.C., prescribed the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary order in the interests of justice; but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of S.94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of S.94 of the Code have their effect and not in taking way the right of the Court to exercise its inherent power.
' Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make order necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it.
'Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the code.
' Thus, there being no such expression in S.94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 or by any rule made under the Code, the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order 39, C.P.C., if the Court is of opinion that the interests of justice require the issue of such interim injunction."
11. The learned Sub-Judge, has rightly placed the document on his file by putting his initials, to rectify the mistake committed by his predecessor. There is no defect in the impugned order passed by the trial Court, as such, I find no reason to record my disagreement. The objection is not sustained. The petition is dismissed accordingly.