' This revision petition is directed against order dated 15-2-1996 of the learned Civil Judge, Lahore, by which, he allowed the respondents to prove the contents of documents dated 3-6-1982 by producing secondary evidence and framed additional issues.
2. Facts out of which this petition arises are that the petitioner filed a suit for declaration with possession. It was claimed that respondent No.1 was owner of Bungalow No.SE-35-R-6, covering an area of 23 Kanals, 14 Marlas and 45 sq. Ft. Who transferred plot measuring 8 Kanals, 12 Marlas, in Khasra No.1023 min, in favour of the petitioner, vide gift deed dated 15-7-1963 and delivered possession thereof. It was alleged that deed of acknowledgement dated 10-3-1996 was executed by respondent No.1 and that the petitioner, at his own expense, raised construction. Petitioner maintained that subsequently the property was acquired by L.D.A., in the scheme known as "Kashmir Egerton Scheme", award dated 29-4-1971 was announced. Petitioner challenged acquisition proceedings, filed a suit against L.D.A. And that the suit was ultimately decreed on_7,5- 1975. Grievance voiced in the petition was that respondents 2 to 4 started claiming themselves, to be owners of the property and attempted to enter their names in the taxation record. In this backdrop, the petitioner claimed a decree for declaration and also for possession.
3. The suit was resisted by respondents 1 to 4, who denied, the plea of ownership of the petitioner, plea of gift and also the plea regarding the execution of acknowledgement of gift or raising of construction.
4. On 27-4-1994, learned Civil Judge framed the following issues:--
(1) Whether the suit is not maintainable in its present form?
(2) Whether the plaintiff has no cause of action and locus standi?
(3) Whether the suit is time-barred?
(4) Whether the plaintiff is owner of the suit property?
(5) Whether the plaintiff is entitled to get the possession of suit property as prayed for?
(6) Relief.
5. It appears that the petitioner completed his evidence on 26-10-1995. At this stage respondents moved an application for summoning certain witnesses and also an application for production of original documents i.e. Family settlement deed dated 3-6-1982. In the reply, the petitioner contested both the applications and maintained that the petitioner was not entitled to summon or produce witnesses for which no list was filed within seven days from the framing of the issues.
Regarding application for production of documents, it was alleged that the document dated 3-6- 1982 was fake and was reduced into writing for the sake of evasion of the estate duty, wealth tax and income tax.
6. The learned Civil Judge, vide order dated 15-2-1996, allowed the respondents to produce secondary evidence as the petitioner had refused to produce the original. The second application for summoning of witnesses was disposed of as being not required, for the reason, that the learned Civil Judge found the necessity of framing additional issues, which would enable the respondents to file list of witnesses and summon them. Accordingly he framed the following additional issues:-- (5-A) Whether the defendant C.M. Latif transferred the disputed property measuring 8 Kanals and 12 sq.Ft. By way of oral gift deed on 15-7-1963?
(5-B) Whether C.M. Latif defendant No. Executed the deed of acknowledgement on 10-3-1966 in order to confirm the oral gift?
(5-C1 Whether the plaintiff raised the super-structure on the disputed plot with his own expenses?
(5-D) Whether the defendants 2 to 4 are in possession of the disputed property being licensees of the plaintiff?
(5-E) Whether the plaintiff has not come to the Court with clean hands and as such does not deserve equitable relief?
(5-F) Whether the acknowledgement of gift dated 10-3-1966 is illegal, void, forged and fraudulent?
(5-0) Whether the plaintiff is estopped to file the suit? Whether the defendants are owners in possession of the disputed property by virtue of family settlement deed dated 3-6-1982?
(5-H) Whether the document dated 3-6-1982 was reduced into writing for the purposes other than leading any legal rights? OPP
7. Learned counsel for the petitioner argued that the learned Civil Judge travelled beyond the prayer of application by framing additional issues. It was added that the evidence of the petitioner having already been recorded, there was no need to frame additional issues at this stage. Learned counsel further contended that the issues already framed were exhaustive and covered the whole controversy hence no occasion arose for the additional issues
8. The submissions made by learned counsel for the petitioner are not well counted.
9. Perusal of the plaint makes it obvious, that the case of the petitioner was that respondent No.1 had allegedly gifted out the property in dispute to the petitioner, an acknowledgement of gift was allegedly executed, the petitioner allegedly raised construction at his own exercise, respondents 2 to 4 were licensees and that the petitioner was entitled to a decree for declaration and possession.
While replying the application for production of settlement deed dated 3-6-1982, it was alleged that the deed was fake and fictitious which was meant for evasion of wealth tax, income tax and other liabilities. Reference can he made to paragraphs 2, 3 and 7 of the plaint which demonstrates the basis of the claim and also about the alleged status of respondents 2 to 4 in the eyes of the petitioners. Likewise, para. 2 of the preliminary objections of reply dated 8-1-1996, makes reference to the defence taken by the petitioner qua document dated 3-6-1982 wherein the petitioner maintained that the document was fictitious, which was prepared with intent to avoid tax and duties and that the petitioner was not supposed to have the custody or produce the same. As against this, Paras. 2, 3 and 7 of the written statement would show, that the respondents denied the plea of gift, execution of the alleged acknowledgement of gift, the plea of raising construction by the petitioner and also the allegation of licensee. In view of the material controversies raised in the pleadings and also the reply to the application, it was necessary to determine the same. Without deciding the plea of gift and the other pleas noted supra, there will be no question of returning findings as to the entitlement of petitioner to have a decree for declaration and possession. The purpose of framing issues is that the parties should be appraised of the points for which they are expected to lead evidence, so that any prejudice may not be caused to either side, due to absence of material issues. Under Order XIV, Rule 3 of C.P.C., all the material controversies in pleadings, applications and affidavits, statements, are to be covered in the form of issues to enable the parties to lead requisite evidence. Every material proposition affirmed by one party and denied by the other has to be a subject of distinct issue in terms of Rule 1 of Order XIV, C.P.C. Rule 5 of Order XIV, empowers the Court to amend issues, frame additional issues, necessary for determining the matter in controversy, at any time before the passing of a decree. For amending or framing additional issues, there need not be a regular application. Rather it is duty of the Court to frame proper issues and if proper issues are not framed, it should be ensured that the issues are amended or additional issues are framed before the conclusion of the trial, so that any prejudice to the parties be avoided.
10. As noted supra, the additional issues, framed by the learned Civil Judge, covered the material controversies raised in the pleadings and need conclusive decision from the Court. The absence of distinct issue on each and every material controversy, was likely to create unnecessary complications and prejudice to either side which has been rightly taken care of by the learned Civil Judge. Mere fact that the evidence of the petitioner had already been recorded, would not affect the power of the Court to frame additional issues, particularly when the additional issues were material and go to the route of the case. The petitioner can produce evidence, if so desired, on the basis of additional issues and thus, no prejudice will be caused to him. In the given circumstances, no exception can be taken to the impugned order which is perfectly legal and necessary for the effective decision of the case.
I I . Regarding permission to adduce secondary evidence, it is observed, that the petitioner did not deny the execution of settlement deed though the defence was that the same was prepared with intent to avoid taxes and duties. Petitioners expressed inability to produce the document which according to the respondent was in his possession. Whether or not the document will have any evidentiary value on merit, will be considered by the Court at the final decision of the suit. At that time, the Court will also consider, whether the plea of evasion of taxes and duties can be entertainc,,1 in law to nullify the effect of the document. At present. The fact remain that the original is not available while the existence of such-like document is not in issue. In these circumstances, the only course available, to the Court was to allow secondary evidence and in doing so, no error of jurisdiction was committed.
12. For the reasons above, this revision is devoid of substance which is accordingly dismissed. It is, however, observed that the petitioner will also be entitled to produce evidence, on the additional issues, where after the evidence of the respondents will be recorded by the Court below. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.