MUHAMMAD YUNUS SURAKHVI, J.--This appeal, by leave of the Court, is directed against the order passed by the High Court on 18-6-1998, whereby the revision petition filed by the respondents was accepted.
2. The necessary facts giving rise to the present appeal are that a suit for possession on the basis of prior right of purchase in respect of survey No,275, measuring 6 Kanals, situated in village Langerpura, Tehsil Muzaffarabad, was filed by one Syed Qalandar Shah, the predecessor-in- interest of respondents.
3. After leading the evidence by the respondents, the appellants also led their evidence in rebuttal regarding issue of waiver. Respondent No,1 appeared as his own witness in the trial Court on 15-11- 1997. During his evidence the respondent tendered certain documents. The production of documents was objected to by the counsel for the appellants and the objection was upheld. Thus, the trial Court refused to permit the respondents to produce the documents. Later on an application was filed by the respondents, seeking permission to produce the aforesaid documents in evidence on 29-11-1997. The appellants submitted objections to the said application and the trial Court vide its order dated 15-4-1998 rejected the aforesaid application. The respondents filed a revision petition against the said order before the High Court which was accepted vide order, dated June 18, 1998, and allowed the production of documents by the respondents. It is the aforesaid order of the High Court which is the subject of the present appeal.
4. Raja Muhammad Hand, the learned counsel for the appellants, submitted with vehemence that the learned Judge in the High Court committed an error by allowing the production of document while exercising powers under Order VII, Rule 18(2) of the Code of Civil Procedure at a belated stage. According to the learned counsel the relevant provision under which the documents could have been allowed to be produced was Order XIII, Rules 1 and 2 of the Code of Civil Procedure provided good cause has been shown by the party intending to produce a document at a later stage. It was also submitted by the learned counsel for the appellants that the provisions of Order XIII, Rules 1 and 2 are to be read together with the provisions of Order VII, Rule 18(2) of the Code of Civil Procedure but in the application filed by the respondents for production of documents no such good cause has been shown. The learned counsel also pointed out that the trial Court vide its order dated 15-11-1997 declined to admit the documents intended to be produced by the respondents but the said order was not challenged by the respondents through a revision petition or otherwise. Thus, the order dated 15-11-1997 became final and after that without challenging the same no remedy was available to the respondents. The learned counsel contended that the High Court, by accepting the revision petition and allowing the production of documents committed an illegality.
5. In reply, it was contended by Sardar Rafique Mahmood Khan, the learned counsel for the respondents that a plea of waiver was raised by the defendants in their written statement and the evidence was led by them on the said plea. The plaintiff-respondent could have produced the relevant documents at the time of rebuttal of the said issue. There was no earthly reason for the plaintiffs to produce the relevant documents alongwith the plaint as the plea was raised in the written statement and obviously in rebuttal of the issue of waiver the plaintiff-respondent was to produce the relevant documents. The learned counsel submitted that in this view of the matter Order XIII, Rules 1 and 2 of the Code of Civil Procedure had no application in the instant case, rather Order VII, Rule 18(2) of the Code of Civil Procedure was the relevant provision which is an exception to the general rule. As regards the objection of the learned counsel for the appellant that the trial Court vide its order dated 15-11-1997 disallowed the request of respondents for tendering the documents in evidence and the order had attained finality the learned counsel for the respondents submitted that under section 115 of C.P.C. The High Court had suo motu jurisdiction to rectify an order which has been passed in an illegal exercise of jurisdiction or with material irregularity.
6. We have given our due consideration to the arguments advanced at the bar and perused the relevant record. In our view Order XIII, Rules 1 and 2 of the Code of Civil Procedure, as pointed out by the learned counsel for the appellants, is to be read alongwith Order VII, Rule 18(2) which reads as under :-- "(1) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced, or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(2) Nothing in this rule applies to documents produced for cross-examination of the defendant's witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory."
7 Under Order VII, Rule 18(1) it is postulated that a document which ought to be produced in the Court by the plaintiff with the plaint is to be presented and if the same is not so produced shall not be received in evidence without the leave of the Court. Thus, a discretion has been given to the Court to receive a document at a subsequent stage even under rule 1 of the said order. However, sub-rule (2) seems to be an exception to the general rule which provides that nothing in this rule applies to the documents which are to be produced in answer to any case set up by the defendant. In the instant case the plea of waiver was raised by the defendants in their written statement so the respondent had no earthly reason to produce the relevant document to rebut the plea of waiver alongwith the plaint.
In a case reported as Messrs Asghar Ali & Bros. v. United Bank Ltd. 1987 CLC 504 while dealing with the provisions of Order VII, rule 18 'the following observations were recorded:- "Mr. Afzal Ahmed, learned counsel for the respondent had relied upon the provisions of Order VII, Rule 18, C.P.C. Which bars the plaintiff to produce a document without the leave of the Court. I am of the view that this bar applies to the plaintiff only and there was no such bar against the defendant contained in Order VII, C.P.C. But, in any case, sub-rule (2) of Rule 18 of Order VII allows a facility to the plaintiff to confront a defendant with a document which has not been produced earlier by the plaintiff and, therefore, on the analogy of this provision a similar facility should have been allowed in favour of the defendant. ..." In case reported as Lakhpat Pathak v. Ghiran Pathak and others AIR 1937 All. 55 it was observed that Order VII, Rules 14, 18(1), (2), Order VII, R.18 is exception to Order VII, Rule 18(1). In case reported as Puran Singh Relu Singh v. Mathra Das AIR 1934 Lah. 126, it was observed at page 127 in the following way:-- In substance .The plaintiff's attempt to produce this document was either a cross-examination of the witness or was intended to answer the case set up by the defendant, namely, that he had acted as an arbitrator and has, therefore, signed the document put in with the plaint. Though there was a vague reference to the "faisla" in the written statement, the position had not been cleared and the plaintiff did not fairly know the defendant's case. In the statement before the issues counsel appearing for the defendant had not even been able to state whether the document put with the plaint was or was not signed by the defendant. Looking at the substance of the matter rather than the peculiar form due to the wrong procedure adopted, the question really fell under O.VII, Rule 18(2), Civil Procedure Code, and the Court should not have refused the document."
8. The learned counsel for the appellant relied on The Lahore Improvement Trust v. Sh. Karamat Ali PLD 1959 Lah. 597 which provides that under Order XIII, Rule 2 reception of document is not to be allowed as a matter of course but for special cause to be recorded in writing.
9. Similarly, in case reported as, Sh. Allah Ditta v. Ahmed & Co. PLD 1954 Lah. 608, it was observed that copy of Jamabandi was neither filed with the plaint nor included in the list of documents relied. The prayer for production of a document on a date when the Court had to pronounce the judgment was rightly rejected.
10. The above referred both the rulings are distinguishable as they deal with the case of plaintiff who has failed to file the documents alongwith the plaint in support of pleas raised in the plaint.
The above authorities do not deal with the situation that if a plea has been raised in the written statement and the plaintiff has to rebut it by producing certain documents.
11. The High Court under section 115 of the Code of Civil Procedure can suo motu correct the illegal exercise of jurisdiction by the Court below. Similarly this Court hainherent powers under Order XLIII, Rules 1 to 5 of the Supreme Court Rules to do complete justice. Thus, in our view the order dated 15- 11-1997 passed by the trial Court declining to admit the documents on behalf of the respondents was an illegal exercise of jurisdiction Which is also set at naught.
12. In the light of what has been stated above, finding no force in this appeal it is hereby dismissed with costs.