1. ' This is an application under Order 13 rule 2 read with section 151, C.P.C. Whereby Plaintiff seeks to bring on record photo copy of a receipt for Rs,90,000 (hereinafter referred to as the said documents) towards security deposit for shed/sheds that were allegedly rented out to defendant No,
1. Earlier the plaintiff's counsel had issued a notice under Order 12. Rule 8, C.P.C. To Defendant No, 1 's counsel for producing the original of the said document but the defendant No,1 failed to do so. It must be noted here that this application has been filed at a time when the trial has already commenced and plaintiff's evidence has been completed and that of defendant No,1 partly recorded. The plaintiff has, however, been permitted by an order, dated 13-10-1994 to lead additional evidence in rebuttal in view of framing of additional issues by the Court about the suit being barred by principle or res judicata and on the question of jurisdiction of this Court consequent upon finding arrived at by the learned Rent Controller in Rent Case No,57 of 1989, subsequently confirmed by the Appellate Court.
2. ' In support of his application, the plaintiff in his affidavit states that the document sought to be taken on record was referred to by the defendant No,1 in his cross-examination and that late production of the said documents would not in any way prejudice the defendant No,1 as he has admitted the existence of the said documents but has failed to produce it himself. He further states that it is a necessary document for determining the controversy involved in the suit and that he wishes to produce it as evidence in rebuttal following the framing of additional issues.
3. ' The defendant No,1 on the other hand vehemently opposes the introduction of the said document and denied that such a receipt, dated 4-1-1986 was ever issued by the Plaintiff and that it is not this document that he referred to in his cross-examination. He further states that this is a fabricated document quite irrelevant to the two additional issues framed by Court and is designed purely to till in lacuna in Plaintiff's evidence. The learned counsel for Defendant No,1 also emphasised the point that in an application under Order 13, Rule 2, the Applicant just show sufficient cause for delayed filing of the document, which the plaintiffs have failed to do. He also pointed out that the Plaintiff has not filed any affidavit-in-rejoinder to rebut Defendant No,l'is contention that the document sought to be introduced is fabricated and hence contention of Defendant No,1 in this regard ought to be regarded as having been admitted.
4. ' Examining the record of evidence, which has been referred to by both counsels, I find that it is an admitted position by both the parties that security deposit of Rs,90,000 was paid by defendant No,1 to the plaintiff in January, 1986 and that a receipt for the same was issued by the plaintiff and that subsequently a duplicate receipt, dated 12-74986 for the said sum was also issued by the Plaintiff.
5. Where the version of two sides differs is how the duplicate receipt came to be issued. According to the Plaintiff the duplicate receipt was issued on defendant No, l's request because he had lost the original, whereas according to defendant No,1 duplicate receipt was issued because the plaintiff desired the original receipt to be only a provisional receipt not to be show in the records of either party.
6. ' There is obviously something amiss here because in spite of the fact that the original receipt would have been an important piece of evidence for both parties in proof of their respective contentions, none of the parties produced it while leading their evidence. It is significant to note that while the plaintiff did try to produce a photocopy of the duplicate receipt during his evidence, which was disallowed by Court, he never made any attempt to produce the copy of the original even though he is on record as having said that the carbon copy of the original was in his possession. Why then this sudden desire by the plaintiff to produce the photocopy of the original at this belated stage? It is obvious that the production of this document can be of no consequence in so far as the additional issues are concerned nor has the plaintiff shown any connection between the two. The only answer to this question appears to be that through this document the plaintiff is perhaps now seeking to show that security deposit received by him was for only one shed and not the entire area of 0.63 acre as claimed by the defendant No,1 subsequent to the findings of the Rent Controller to this effect in Rent Case No,57 of 1989. There is, thus, an obvious attempt by the plaintiff to use this opportunity for bringing additional evidence in rebuttal in connection with additional issues framed, to fill in lacuna in his evidence. Besides the fact that Plaintiff avoided to bring this document on record earlier even though it was an important piece of evidence would rake doubts about the authenticity of this document. It would thus appear that the original document had been purposely suppressed by both parties, perhaps to avoid showing it in their income tax returns.
7. ' The statutory law on the subject relating to documentary evidence is laid down in Order XIII, Rules 1 and 2. It may be advantageous to reproduce it here:-- "XIII(1) Documentary evidence to be produced at first hearing.--(1)
8. ' The parties of their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on, which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.
(2) The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
(3) On production of documents under this rule, the Court may call upon the parties to admit or deny the documents produced in the Court and recorded their admission or, as the case may be, denial.
9. 13 (2) Effect of non-production of documents.---No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing."
10. ' As regards case-law the counsel have cited the following authorities:- d) Jamal Dar and others v. Additional District Judge, Jhang and others (1990 M LD 1934);
(ii) United Bank Limited v. Shabbir Ahmed Abbasi and others PLD 1981 Kar. 255);
(iii) Mohammad Ibrahim v. SITE Ltd. (PLD 1985 Kar. 95); and
(iv) Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and others (PLD 1975 SC 678).
11. ' From the above case-law. It emerges that the Courts should normally exercise their discretion in favour of allowing introduction of additional documents in order not to penalise a party by shutting out his additional evidence, provided that the authenticity-of the documents is beyond doubt and the party concerned shows sufficient cause for delay in filing of documents. Be that as it may, but it is nevertheless necessary to examine the reasoning behind Order 13, Rule 2, which provides for delayed production of documentary evidence. Ordinarily, the parties are required to produce their documents on the first date of hearing, the purpose being that both parties should know as to what is the case against them and as to what documents are the parties relying upon. Under the English procedure, the admission and denial of documents, which takes place at this time very often obviates the need to proceed further in a case. A similar procedure has now been introduced -in our Courts as well through addition of sub-rule (3) to Order 13, Rule 1 by Civil Law Reforms Act XIV of 1994. Consequently, it would appear that now the law contemplates that the question of documentary evidence that the parties are relying upon must be resolved in the very beginning so that there should be no surprise in store for either party.
12. ' Looking at the litigation scenario in our Courts more often than not late filing of documents has come to be regarded as a right. In effect this provision for late filing of documents has now become a tool for covering up the negligence of the parties in producing the documents in time or a subterfuge for denying the other side the opportunity of finding out the nature of documents the party is relying upon. In other words, what has happened is that this provision is now being used as an instrument to delay the proceedings and to bring on record documents surreptitiously, often to fill in a lacuna in the evidence of the party concerned. Surely, this was not the purpose for which the law makers introduced this provision in the Civil Procedure Code. It was, as is borne out by case- law on the subject, originally introduced in the interest of justice but unfortunately has become an instrument to thwart the ends of justice. Presumably it is in acknowledgment of the emergence of this unsavoury trend in litigation that the law makers added sub-clause (3) to Order 13, Rule (1) requiring admission and denial of documents at first hearing. Consequently, I am of the view that subsequent to the introduction of this new sub-clause, the requirement of filing all documents at first hearing has become more stringent since possible early disposal of the suit is now linked to filing documents at the first hearing. I, therefore, hold that permission to file documents after the hearing in a case has D commenced should be granted as an exception rather than as a rule but not so if hearing has not commenced when provision of Order 13, Rule 2 should be liberally construed.
13. ' In this case the evidence has almost been completed and there are obviously some doubts about authenticity of the said document which are exacerbated by the fact that plaintiff has failed to rebut defendant No,1 's allegations regarding the said document being fabricated through filing an affidavit-in-rejoinder. A reading of the evidence also shows that the plaintiff is seeking to fill in lacuna in his evidence. Plaintiff has also failed to show any cause for delayed filing of documents, let alone sufficient cause. It has not at all been shown as to why plaintiff was unable to produce this document earlier when he had referred to it himself in his evidence. I am, therefore, of the view that the plaintiff ought not to be allowed to bring this document on record so belatedly and hence this application is dismissed. However, observation herein with regard to facts will not affect final adjudication of this suit.