Respondent Muhammad Sharif and Mst. Ghulab Begum filed a suit for declaration that the suit land (evacuee property) belonged to them and the present petitioner had no connection whatsoever with that.
2. The suit was resisted, issues were framed and the plaintiffs led their evidence. Thereafter, the petitioner submitted an application for leading secondary evidence as primary evidence was not available.
3. Learned Civil Judge by order dated 9-1-1990 dismissed the application and the revision filed by them also failed and dismissed by order dated 18-6-1990. The present petition was filed to assail the legality and correctness of the aforementioned orders 8-1-1991 and learned counsel for the parties have been heard in the matter today.
5. Learned counsel for the petitioner submitted that application dated 25-7-1989 was dismissed on erroneous considerations by the learned lower Courts and the main reason which found favour with the learned lower Courts was that the petitioner had filed an application on the subject earlier which was dismissed on 31-7-1988, and as such a second application on the subject was not maintainable but this view of the learned lower Courts was contrary to record. It was submitted that the petitioner submitted an application for amendment of the list of witnesses already submitted by her and sought name of Accountant Treasury Office/District Accounts Office to be included in the list of witnesses which application was rejected by order dated 31-7-1988 and that the petitioner had never moved any application for leading secondary evidence in the matter and since the impugned orders were totally against the factual position, the same would be deemed to have been declared without lawful authority. It was further submitted that primary evidence was not available as such the petitioner was entitled to lead secondary evidence in the matter. On the other hand learned counsel for the respondent submitted that the application was rejected rightly by the learned lower Courts. It was contended that the contention of the petitioner was that she had herself deposited a sum of Rs.3,396 as such she should be in possession of treasury/bank challan showing deposit of money and that the petitioner cannot be allowed to lead secondary evidence as the primary evidence should be available with herself.
6. The petitioner had submitted an application for leading secondary evidence in the matter and the secondary evidence sought to be led consisted of copy of application form dated 27-7-1978; copy of treasury/bank challan showing payment of Rs.3,396; application form returned by the Copying Agency and besides that certain witnesses were sought to be examined to prove these documents. The application was rejected by learned First Court by observing that the petitioner earlier submitted an application for production of these documents as additional evidence which was rejected by order dated 31-7-1988 passed by a predecessor of the learned Civil Judge and that the revision petition against that order was also dismissed and further that application was a substitute of the previous application. It was farther observed that the reasons given in the application for production of documents as secondary evidence were not proper. Learned Additional District Judge, Chakwal endorsed these views. A perusal of the order dated 31-7-1988 shows that the petitioner had submitted an application for amendment of list of witnesses and had sought inclusion thereidof the name of Accountant, Treasury. The earlier application was not an application for grant of permission to lead secondary evidence. The impugned orders are, therefore, contrary to facts. The ground which weighed with the learned lower Courts was obviously not available.
7. Learned counsel for the respondents submitted that the petitioner should be in possession of the Treasury/Bank Challan manifesting deposit of Rs.3,396 and in these circumstances, she could not be allowed to lead secondary evidence. The contention of the petitioner as a matter of fact is that the treasury challan did not reflect correct position and in this view of the matter secondary evidence was necessary to be led as the original was not available which is manifested by the report of the Copying Agency and by the fact that the application form was returned by the Copying Agency. The reasons given in the application and those submitted at the bar warrant that the petitioner should be allowed to lead secondary evidence in the form of documents mentioned in the application and she would be also entitled to examine those witnesses whose names were given by her in the list of witnesses submitted after the issues were framed in the suit. Tendering into evidence certain documents and worth of those documents are altogether different aspects.
The petitioner claims that she had deposited the amount of Rs.3,396 and desired to submit secondary evidence in that respect. On the other hand Mst. Ghulab Begum also claims to have deposited this amount and as such should be in possession of the requisite bank/treasury challan.
Learned lower Courts can very well-appreciate worth of the documents submitted by the parties and then come to the conclusion of their own after evaluating material produced by the parties.
The petitioner was deprived of the opportunity to lead secondary evidence on erroneous consideration of the law as well as of the facts.
8. The impugned orders being contrary to record as well as the law are declared to have been passed without lawful authority and the same are consequently set aside. The application dated 25-7-1989 submitted by the petitioner is allowed. She would be entitled to lead secondary evidence in the form of documents mentioned at Serial Nos. 1, 2 and -3 in paragraph 6 of the application She shall also be entitled to examine those witnesses, which already find mention in the list of witnesses submitted by her after the issues were framed in the suit.
9Writ petition is disposed of in the above terms