This revision petition is directed against the order dated 8-7-1993 whereby the application of the petitioner for production of secondary evidence in respect of agreement to sell dated 6-7-1983 was dismissed.
2. The necessary background of the matter that the petitioner filed a suit on 21-4-1986 for specific performance of the agreement dated 6-7-1983 against respondent No.1, who had already sold on 15-2-1986 a portion of the suit land to respondent No.2, therefore, he was directed to be impleaded as defendant No.2 in the suit. The owner of the land respondent No.1 did not contest the suit. He was, therefore, proceeded ex parte. However, respondent No.2 contested the suit. The trial Court framed issues on 27-3-1989. The petitioner on 10-11-1992 made an application under Order XVI, Rules 1 and 2, Order XIII, Rule 2 read with section 151, C.P.C production of documents including the agreement to sell dated 6-7-1983. The same was allowed by the trial Court vide order dated 10-1- 1993 but it was adjourned on the request of the petitioner to 23-2-1993 when the statement of Allah Yar was recorded; while Amir Ali was in the witness-box, the petitioner requested for time to produce the agreement to sell. It was ultimately on 6-6-1993 that he made an application for production of secondary evidence . It was pleaded that the original had been lost, therefore, the petitioner allowed to produce Abdul Latif, Wasiqa Nawees, Shahkot, District Shekupura and Muhammad Hussain, Petition-Writer. This application was dismissed as noted in the beginning of this judgment and hence the present revision petition, which was admitted to regular hearing and notices were ins ed to the respondents. But respondent No.2 alone has appeared and contested the petition.
3. Learned counsel for the petitioner in support of the petition argued that there is no doubt as to the genuineness of the agreement as is clear from the fact that the photocopy of the same was presented along with the plaint and the same has been referred to in the plaint also. It is added that the petitioner was entitled to lead secondary evidence in view of Article 74(2) and 76 of the Qanun-e-Shahadat. The learned counsel in this behalf has placed reliance on the decision reported as Muhammad Khan v. Ghulam Rasool (PLD 1952 Lah. 40). The arguments have been concluded with the submission that since the petitioner was under the impression that the original agreement is available, therefore, the petition was not moved earlier.
4. On the other hand, the learned counsel for respondent No.2 argued that the alleged agreement is the result of-collusion between the petitioner and respondent No.1, the original owner. It is added that the respondent in para.1 of his written-statement has very categorically taken up the plea that the agreement is forged, fabricated and ante-dated document. Had the original been produced the Expert could have easily opined as to how old the document is. It is added that tire petitioner miserably failed to prove that the document was lost or destroyed which is the condition precedent in view of the provisions of Articles 74, 76(c) read with Article 120 of the Qanun-e- Shahadat. The arguments are concluded with the submission that the trial Court has exercised its jurisdiction legally and properly, therefore, it is not a fit case for interference in revisional jurisdiction.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record. The suit was filed on 21-4-1986 while the issues were framed on 27-3- 1989 and the petitioner on 10-11-1992 moved the application under Order XVI, Rules 1 and 2 and Order XIII, Rule 2 read with section 151, C.P.C. The petitioner in the intervening forty-for months has not produced a single witness. `The aforementioned application was allowed on 10-1-1993. The petitioner should have immediately produced the documents, and in any case on 23-1-1993, which was the next date for the production of his evidence. This was not done. The suit was then adjourned to 23-2-1993 when the statement of one witness Allah Yar was recorded and while Amir Ali, the other witness was in the witness-box then time was again sought for the production of the original agreement to sell. It was not produced and ultimately the application for secondary evidence was moved on 6-6-1993. The learned trial Court after taking all the facts into account concluded that the original document is intentionally and mala fide being withheld and that the petitioner has failed to prove the loss of the document, therefore, his request to lead secondary evidence was turned down. There is nothing wrong with these findings, The same are supported by the record. The trial Court has exercised its discretion legally and properly, therefore, there is no scope for interference in revision.
6. This is not all. The plaintiff was required to produce the agreement to sell on the basis of which he had filed the suit for specific performance along with the plaint in view of the clear provision of Order VII, Rule 14, C.P.C. While the remaining documents in his possession or power or not he could have entered in the list of reliance. Then comes Order XIII which requires the parties and their pleaders to produce all documentary evidence of all description in their possession or power on the first date of hearing. The petitioner also did not comply with this mandatory provision. It is a mandatory provision, in view of the rule laid by the Hon'ble Supreme Court in the case Niaz Muhammad Khan v. Mian Fazal Raqib (PLD 1974 SC 134) because no document in possession or power of any party shall be received in evidence at a subsequent stage of proceedings in view of Rule 2 of Order XIII, C.P.C. The Court receiving any such document shall record reasons for doing so.
Now if the order dated 10-1-1993 accepting the earlier petition for production of agreement to sell etc., is considered in the light of requirement of Order XIII, Rule 2, C.P.C. Then strictly speaking the trial Court failed to exercise its jurisdiction in accordance with law while accepting that application.
Neither the application nor the order dated 10-1-1993 complied with the prerequisites.
7. Now coming to the period after acceptance of the petition i.e. 10-1-1993. The petitioner was allowed to produce the original agreement to sell etc., but he avoided this opportunity also. The trial Court should proceed strictly in accordance with the above rule and the time specified for doing the needful. This was other mistake committed by the trial Court in this case when it simply adjourned the suit to 23-1-1993. Neither the documents nor any evidence was produced, therefore, the order dated 10-1-1993 as to the production of the documents became inoperative. The permission to produce agreement was not a licence for the petitioner to place the agreement on the record whenever he liked. He was under legal obligation to produce the same within reasonable time and in any case by the next date fixed for evidence i.e. 23-1-1993. Thereafter the suit was adjourned to 23rd February, 1993 for the production of evidence. It was on this date the petitioner again requested for time to produce the agreement to sell.
The provisions of the Civil Procedure Code particularly Orders VII, XI, XII and XIII are very useful provisions. If the trial Court enforces the same then the time for concluding the trial would be cut short substantially; but unfortunately there is a general tendency on the part of the Advocates as well as the Courts to ignore these provisions. It is the duty of every trial Court to instruct its Ahmad to incorporate the non-compliance of Order VII in the report while registering a suit and thereafter the Court should insist for compliance. It has been noted in numerous civil revisions arising out of the suits for specific performance that the agreement to sell was not produced even after framing issues and subsequently there was an application for production. Of the secondary evidence. The possibility of the agreement being forged. Fabricated and fake cannot be ruled out. More so, in view of the fact that moral fibre of the society has gone too low. Therefore, it is all the more incumbent to strictly enforce the provisions of the Code of Civil Procedure as to the production of the documents etc. In this behalf, the trial Courts should invariably keep in view the following;------
(i) the documents, the basis of the suit, should be got produced before issuing notice to the defendants;
(ii) the parties, where deemed necessary, should be directed to issue notice of admission, denial and production to each other as required under Orders XI and XII before issues are framed;
(iii) the parties should be directed at the time of the framing of issues to file list of witnesses and of documents in their possession or power within seven days. The result of this order should be noted by the Ahmad in the margin of the interim orders; while the same should be duly reflected in the order passed on the next date. It is necessary to avoid allegations by one of the parties that the documents and list of witnesses were duly filed by it but that has been mischievously got removed from the record by the opposite-party. This is the only way to keep the record straight and accurate.
9. This order may be brought to the notice of Hon'ble the Chief Justice so, if deemed necessary, instructions could be issued by the Registrar to all subordinate Courts wherein it should be made clear that non-observance may lead to disciplinary proceedings.
10. The upshot of the above discussion is that there is no merit in this revision petition. The same is dismissed.