IHSAN UL HAQ CHAUDHARY, J.--The petitioners have prayed through this Constitutional petition that the orders dated 29.1.1990 and 10.9.1989 of the respondents No. 1 and 2 respectively be declared illegal and without lawful authority.
2. The relevant facts are that respondent No.3 Hied a suit in the Court of Senior Civil Judge, Jhang against the petitioners and respondent No.4. The petitioners contested the suit. The learned trial Court accordingly framed the issues on 3.2.1988. The matter was at evidence stage when the petitioners made an application for permission to produce documents, namely, account books of the partnership and account of respondent No.4. The petitioners contested this application to the extent of accounts of the firm. The learned Civil Judge granted the same vide order dated 10.9.1989, The petitioners filed a revision petition in the Court of Sessions Judge, Jhang. The same case on the i.e of respondent No. 1, who proceeded to dismiss it vide order dated 29.1.1990. The petitioners have now impugned both these orders through this petition.
3. The petitioner was admitted to regular hearing and notices were issued to the respondents. The respondents No.3 and 4 have appeared while respondents No. 1 and 2 were proceeded exparte.
The learned counsel for the petitioner in support of the petition has argued that learned trial Court after observing that the account books, which are sought to be produced through Raham Din Munshi is private record and its authenticity is not beyond doubt, there was no justification to allow the production of these documents. It is submitted that according to the provisions of Order VII Rule 14 C.P.C, the plaintiff was not only to append all the documents in his possession with the plaint but also to specify the documents and the person in possession of the same. The documents so mentioned were to be produced along with the plaint or at the first date of hearing. The arguments are concluded with the submission that the account books are all forged and fabricated and the story that the same are in possession of Munshi of the firm has been coined with a view to set at naught the provisions of Orders VII and XIII C.P.C.
4. On the other had, learned counsel for respondent No.3 has argued that the documents are relevant and material for the decision of the controversy between the parties. It is submitted that the trial Court is fully competent to permit the production of documents at a later stage. In this behalf learned counsel has referred to Rule 18 of Order VII C.P.C. The arguments are concluded with the submission that the Courts below have exercised the discretion vested in them properly, therefore, it is not a fit case for interference in Constitutional jurisdiction.
5. Mr. Masud Javaid, Advocate, learned counsel for the respondent No:4 has argued that his client is neither necessary nor proper party as neither there is any cause of action in favour of the plaintiff against the Bank nor any relief has been sought by him against the Bank. In this behalf the learned counsel has referred to para 6 of the plaint pertaining to cause of action and prayer clause. There is nothing wrong with the submission of the learned counsel that the trial Court has failed to exercise its jurisdiction properly while not applying its mind to the plaint and the written statement of respondent No.4 and striking out the Bank as a defendant. The learned counsel was asked to assist this Court on the point involved in this petition. The learned counsel submitted that beside Order VII CP.C. The other relevant provision is Order XIII Rule 1 C.P.C. The argument is that provisions of Order VII Rules 14 and 18 are to be read with Rules 1 and 2 of Order XIII C.P.C. It is submitted that according to the judgment of the superior Courts private documents, which can be very conveniently prepared by the parties any moment are normally not allowed to be produced at a belated stage. The learned counsel in this behalf has referred to cases reported as Sh:Allah Ditta Vs A.F Ahmad & Co and others (P.L.D 1954 Lahore 608), Lahore Improvement Tnist Vs. Karainat -Mi (PL.D 1959 Lahore 597), Lahore Improvement Trust Vs. Khuda Batash-Mehrai Dip (P.L.D 1956 Lahore 252)
Muhammad Hussain and others Vs. Settlement Commissioner. Lahore and others (P.L.D 1984 Lahore 139), Faizullah Vs. Mst. Zain! (P.L.D 1984 Azad J & K 41) and Muhammad Ibrahim Vs. Sind Industrial Trading Estate Ltd, and 3 others (P.L.D 1985 Karachi 95). Suffice it is to refer to the case of Lahore Improvement Trust Vs. Khuda Bakhsh- Mehraj Din, the relevant portion of the judgment reads as under:- "My interpretation of rule 2 of OXIII is that good cause is to be shown for the reception in evidence of the document in question. There is a discretion in the Court to grant leave as there is in case of infringement of other connected rules. The Court is entitled to consider not only the reason for non- production but the authenticity of the document and the delaying effect of the reception in evidence of the document in cases where the document is of undoubted authenticity, leave should ordinarily be granted but the discretion of the Court is there."
The same view was followed by this Court in the subsequent case of Lahore Improvement Trust Vs karamat Ali ibid.
6. On the other had, learned counsel for respondent No.3 has relied on the case of Umar Hayat Vs. Naik Alam (P.L.D 1877 Azad J&K 78), case of Lahore Improvement Trust Vs Sh. Karamat Ali ibid and the case of Shabhir Ahmad Abbasi Vs. United Bank Ltd Karachi and another (P.L.D 1981 Karachi 596).
The judgment of Umar Hayat is not relevant because in that case the documents sought to be produced was the letter of the plaintiff himself. It was held that the authenticity of the document is beyond doubt and the same was allowed to be produced while in the case of Sh:Karamat Ali the plaintiffs own letter was excluded from evidence on account of wanton disregard of the provisions of law relating to production of documents. While, as already noted, the principle laid down in the case of Lahore Improvement Trust Vs. Khuda Bakhsh-Mehraj Din was followed. The case of Shabhir Ahmad Abbasi is also not relevant because in that case the reason for late production of the documents was that the same were not traceable and the other side has not disputed their genuineness.
7. Now coming back to the case in had, not only the trial Court has observed that these documents are private documents but the same have clearly been fabricated to meet the defence plea. It passes ones comprehension that how the accounts of the firm are in possession of a Munshi of the firm. The same should be in possession of the firm and the story that the same are in possession of Munshi clearly seems to have been coined to overcome the difficulty of late production of these documents. The accounts were the basis of the claim of the plaintiff and the same should have been produced in accordance with law at the best on first date of hearing.
8. I, therefore, respectfully following the rule laid down in Lahore Improvement Trust Vs. Khuda Bakhsh-Mehraj Din ibid, hold that the Courts below have acted illegally while accepting the application of respondent No.3- plaintiff in respect of the account books of the firm. The learned counsel for the plaintiff further submitted that the examination-in-chief of Raham Din Munshi has been recorded and all the accounts exhibit marked. This will not change the position because the moment order of permission to produce the documents dated 10.9.1989 is set aside. All further proceedings in pursuance of that order automatically disappear. The plaintiff if interested can examine Raham Din but he is not allowed to produce any document.
9. The upshot of the above discussion is that this petition succeeds and is allowed with costs and the impugned orders dated 29.1.1990 and 10.9.1989 of Courts below are set aside. The result is that the application of the plaintiff to the extent of the production of account books in possession of Raham Din is dismissed.