MRS. FAKHAAR-UN-NISA KHOKHAR, J.-- The instant Civil Revision is filed by Mr. Ahsan Akhtar, Assistant Manager of the petitioners American Express Travel Related Services Company, which is duly authorised to institute, defend, file, verify and sign pleadings, affidavits and documents and to do all acts and things necessary thereto.
2. The brief facts of the instant Civil Revision are that the respondent filed a suit in the Civil Court for the recovery of Rs. 15 Million as damages against the petitioners American Express etc. Earlier a Civil Revision No. 436/99 was decided by this Court and a direction was given to the learned Trial Court to formulate an issue regarding the jurisdiction, allow the parties to produce evidence and if the issue is decided in favour of the respondent/plaintiff then proceed with the suit. On the direction of this Court the learned Trial Court recorded the evidence of the parties on the point of jurisdiction. The learned Trial Court vide order dated 15.10.1999 decided the issue of jurisdiction in favour of the respondent/plaintiff. The learned counsel for the petitioner also gave an application under Order XI, Rule 12, 14 and 16 read with Order XIII Rule 1 and 2 of the CPC for the production of the original documents produced and exhibited in the respondents' evidence. That application was also disposed of by the learned Trial Court with the observation that the petitioner may examine the exhibits from the record of the Court. Being aggrieved by the orders dated 15.10.1999 and 8.12.1999 passed by the learned Trial Court the petitioner through the single instant revision petition has challenged both the impugned orders.
3. That arguments advanced by the learned counsel for the petitioner are that both the orders passed by the learned Trial Court suffer from material irregularity and are based on misreading of evidence and documents of the petitioners and also failure to understand the real issue raised on the application under Order VII Rule 10 CPC; that the learned Trial Court was wrong in stating that the dispute in question pertains to a Gold Card issued. In 1995. Therefore, the card issued in 1991 is not relevant. However, the respondent is relying on the 1991 Card and the respondent has filed with the plaint the acceptance letter of 1991 Card. This acceptance letter contains the terms and conditions on its back and this document is mentioned at Sr. No. 4 on the list of documents filed by the respondent under Order XIII Rule 1 CPC with the plaint that the learned Trial Court erred in deciding the point of jurisdiction relying on Exh. D/7 and observing that Exh.D/7 has no terms and conditions on its reverse side. However, it is clearly printed on Exh. D/7 that:- "Important by signing and using the enclosed American Express Gold Card I am accepting 'the conditions printed on the reverse side hereof. I have read them carefully and agree to be bound by this agreement".
Therefore, there was no question that no terms and conditions exist on the issue side, that the learned Trial Court also erred in deciding that the Card received by the respondent in 1995 was received without any terms and conditions. Although it was an upgraded facility of the original Card which was issued in 1991. Further submitted that the learned Trial Court was wrong in not appreciating the fact that the Members of all kinds of American Express Cards are bound by its terms and conditions printed on the reverse side of the application forms and acceptance letters; that the learned Trial Court was wrong in stating the ,Exh.D/1 pertains to old Green Card of the plaintiff and has no concern with the present Gold Card and in this way the learned Trial Court failed to take notice of the fact that the Jurisdiction Clause 19 of the "Terms and Conditions" of the American Express Card Agreement whereby the Courts at Karachi shall have the exclusive jurisdiction in respect of all the disputes out of this agreement. Further submitted that the learned Trial Court misread the evidence on record and have come to an erroneous conclusion about its jurisdiction and thus the impugned order suffer from serious illegality and material irregularity' resulting in miscarriage of justice being not sustainable in law and the impugned orders being sketchy and non-speaking are passed without mentioning and discussing written arguments filed by the petitioners. Therefore, the impugned orders dated 15.10.1999 and 8.12.1999 be set aside and the proceeding in the learned Trial Court be stayed.
4. The learned counsel for the respondent submitted that the petitioner has challenged two impugned orders dated 15.10.1999 and 8.12.1999 through single revision petition which is not competent. So far as the Order XI Rule 15 CPC is concerned the application of the Order XI Rule 15 CPC is attracted before filing the written statement. It is not attracted after the evidence is produced by the parties. The original documents i.e. EXh. P/1 and Exh. D/7 have been exhibited in the evidence in view of PLD 1968 Supreme Court 140 objection to document be taken at earlier time and the parties should not wait that the evidence is recorded and later on come forward for the attraction of Order VIII Rule 15 CPC Reliance is placed on AIR 1994 Patna 177, AIR 1979 Orisa 96 and AIR 1986 Madras 19. It is submitted that the list of reliance has been placed on the record of the learned Trial Court at page 45. The learned counsel for the petitioners wanted the documents i.e. Exh. P. 2, Ex.P. 6 and Exh. P. 7 under Order XIII Rule 1 and Order XI Rule 15 CPC but all these documents are on the record which the petitioners can examine and no illegality has been committed by the learned 'Trial Court while deciding the point of jurisdiction.
5. I have heard the learned counsel for the parties and have carefully perused the record.
6. It is really unfortunate that the suit for the recovery of damages was filed by the petitioner on 25.9.1996 and it is still not decided and the parties have been agitating in revision against the orders passed by the learned Courts below. I have carefully gone through the impugned orders.
The learned Trial Court after perusing the evidence formulated some points to be decided for the purposes of jurisdiction. The first point is whether the defendant has an office in Lahore and the suit could have been filed at Lahore, whether a fresh contract regarding the Gold Card had been entered into between the parties in the year, 1995 and whether the. Evidence led by the defendant particularly the documentary evidence is at all admissible and what is the evidentiary value of the same and whether clause of the terms and conditions of the contract had been agreed to by the plaintiff and the Courts at Karachi alone would have the jurisdiction to hear this case? The learned Trial Court observed that the American Express has an office at Lahore and the Plaintiff/respondent has been dealing with it for the last 10 years. The learned Civil Court at Lahore has jurisdiction to try the suit. It was again observed by the learned Trial Court that the matter in question pertains to Gold Card No. 3769-836693-31004 that was issued in 1995 and not a Card alleged to have been issued in 1991. Therefore, the Card issued in 1991 is not relevant and as per Clause 19 of the terms and conditions of the application form, the Courts at Karachi have exclusive jurisdiction to her the 'case.. The learned Trial Court further observed that Exh.D/1 is not an application submitted by the plaintiff to the defendant for the, issuance, of Gold Card and document Exh.D/1 is a specimen which does not bear the signature of the plaintiff on its front side and also on its reverse side, therefore, the same cannot be treated as an application submitted by the plaintiff to the defendant for the issuance of Gold Card. The document Exh.D 2 pertains to old Green Card of the plaintiff and it has no concern with the present Gold Card with the aforesaid number. Exh.D/7 does not bear any terms and conditions on its reverse side. The reason given by the learned counsel for the petitioner/defendant was that the record of the plaintiff of Gold Card was misplaced and could not be produced and it is further verified by the witness Tayyab Raza DW.
1. Therefore, the original record has been misplaced by the petitioner/defendant and it could not be said that the application was signed by the plaintiff when he was bound to abide by the Clause 19 of the Agreement in respect of jurisdiction at Karachi, therefore,' the issue of jurisdiction being not provided is decided against the petitioner/defendant.
7. I have also perused the application given on behalf of the petitioner under Order XI Rules 12, 14, 16, Order XIII Rule 1, and 2 of the CPC for the production of documents by the plaintiff. This application was given for the production of certain record by the plaintiff for the purposes of cross examination. As according to law the plaintiff is bound to place on record all the original documents in his possession on the first date of, hearing of the case, therefore, the plaintiff was called upon by the learned Trial Court to file in Court the original documents, although which are in his possession for inspection of the defendant enabling the defendant to cross examine him.
Therefore, the notice was given to the plaintiff to produce the documents Exh. P. 1 American Express Gold Card Exh. P 2 whereby Ex.P 8 statement of account dated 12.7.1995 and Ex.P. 7 statement of account dated 12.7.1995 and contract signed and relied by the plaintiff and list of reliance under Order XIII Rule 1 CPC. The learned Trial Court dismissed this application observing that the aforesaid documents have been produced and exhibited by the plaintiff in his examination-in-Chief recorded on 20.3.1999, therefore, the petitioner /defendant may examine the aforesaid documents from the record of the learned Trial Court. The application was disposed of and the case was fixed for recording of evidence on 22.1.2000. It is note worthy that the petitioner had not been challenging this order straight way rather kept quiet, got recorded evidence and when the decision was given by Court on the point of jurisdiction against him he has come and challenged this impugned order as well. Learned counsel for the petitioner placed reliance on United Bank Ltd. Karachi Vs. Shabbir Ahmad Abbasi and another (PLD 1981 Karachi 255), where it is held that Rules 15 and 18 of Order XI, C.P.C. Provide for alternate procedures. In case of refusal to grant inspection, if asked for the defendant under Rule 15, the plaintiff is not at liberty to put the documents in evidence unless he satisfies the Court that he had some cause or excuse which the Court shall deem sufficient for not complying with such notice Orders XI and XIII Rules relating to filing and reception of documents. To be liberally construed in favour of documents being allowed to be filed or put in evidence. The next judgment which is relied by the learned counsel for the petitioner is Nasir Abbas Vs. Manzoor Haider Shah (PLC? 1989 Supreme Court 568) where it is held that under Order XLI, Rule 31' and Section 115 CPC, if evidence on record has not been fully weighed and considered, that does not fulfil the requirements of Order XLI Rule 31 CPC and if the lower Court, misreads the evidence on record and fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with, -material irregularity and its decision is open to revision Further relied on Karam Din alias Khechro Vs. Rana Zaheer-ud-Din (PLD 1992 Lahore 291) where it is held that under Order XIII Rule 2 the permission to produce receipt as additional evidence during arguments before the Trial Court, not granted. If such receipt was, with the petitioner at the time of filing of list of reliance, he should have produced the same and should not have waited for framing of issues or during evidence. Petitioner's plea that receipt in question, had been misplaced was belied the entry in the list of reliance. The Courts below w ere justified in refusing to receive receipt in question, was additional evidence. Further relied on Ghulam Qadir and another Vs. Mst. Kundan Bibi and another (1991 SCM R 1935). In this case the plaintiffs' grievance was that additional issues were framed on 5,3.1986 and suit was adjourned for evidence of plaintiffs to 8.3.1986 when their evidence was closed. It is held that no application as filed for summoning the official witness. No case for interference with the order of High Court having been made out, leave to appeal was. Refused. The next judgment which is relied by the learned counsel for the petitioner is Multali Vs. Manzoora and another (RLD 1994 Lahore 298). In this case the plaintiff was required to produce agreement to sell on the basis of which he had filed the suit for specific performance alongwith the plaint while the remaining documents in this possession or power or not he could have entered in the list of reliance. The provisions of Order XIII CPC are mandatory and require the parties and their pleaders to produce all documentary evidence of all descriptions in their possession on the first date of hearing. No document, in possession or power of any party shall be received in evidence at a subsequent stage of proceedings in view of Order XIII, Rule 2 CPC. Court receiving any such document shall record reasons for doing so.
8. The document Exh.P. 1 is the photo copy of Gold Card acceptance letter. Exh. P. 2, Exh. P. 6 and Ex.P. 7 are original documents which are placed on the file.
It is strange that the defendant kept quiet after his application for inspection of documents was disposed of by the learned Trial Court and he only felt aggrieved when after recording of evidence the learned Trial Court concluded that it has jurisdiction to proceed with the case, therefore, I am not convinced by the arguments advanced by the learned counsel for the petitioner. The provisions of Order XI Rules 15 and 16 are reproduced below:-- "15. Every party to a suit shall be entitled at anytime to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party diving such notice, or of his pleader and to permit him or them to take copies thereof and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice.
16. Notice to any party to produce any documents referred to in his pleading or affidavits shall be in Form No. 7 in Appendix C with such variations as circumstances may require."
9 In this case the documents stand exhibited by the parties . The defendant cannot rests his case on the evidence produced by the plaintiff. He has to rebut the. Evidence produced by the plaintiff.
He has to rebut the evidence produced by the plaintiff. Still the evidence has to come on the real issue of recovery of damages and the parties are at liberty to produce the evidence. In case the plaintiff who has refused the notice of inspection by the defendant wants to place on record any document under Order XII, Rule 2 CPC. No such document in possession or power of any party shall be received at later stage unless the Court receiving any such document shall record reasons for doing so and this is what is the intention of the provision of Order XI Rule 15 and 16, Order VII Rule 14 and Order XIII CPC..
10. I have 'gone through the plaint filed by the plaintiff. In Paragraph 4 of the plaint the plaintiff has placed his suit that the defendants have issued American Express Gold Card No. 3769836693- 31004 to the plaintiff and this document is exhibited as Exh. D. 7 and it does bear the No. 3769- 836693-31004 at page 47 of the revision. Exh. P. 3 and Exh. D/4 are the new accounts. Exh. D.
5. Is Account No. 76984458522001. It bears the signature of the member on the front and also the terms and conditions Exh. P. 6 is the Gold Card. The petitioner/defendant had exhibited the specimen form but this specimen form does not carry the signatures of any party which are rightly held to be irrelevant by the learned Trial Court.
11. I have also perused the evidence produced by the defendant. DW. 3 is Tayyab Raza who is Collection Analyst to recover Cards and resolve all the disputes amongst disputes. He stated in his examination-in-chief that the basic purposes of American Express are Banking and Travelling. The Head Office of Credit Card is at Karachi and it is issued from Karachi. The payment is also received at Karachi: The Cards are personal Green Cards, Personal Gold Cards and Corporate Cards. One has to apply to get the American Express Card and the application is given according to the standard form Exh. P. 1, (under objection) of the learned counsel for the plaintiff. Every body who applies for getting American Express Card would abide by the terms and conditions on the reverse side of the application. According to Clause 19 of the Terms and Conditions the Courts at Karachi have the jurisdiction. The application Exh.P. 2 was received on 25.8.1991 at Karachi (under objection) of the learned counsel for the defendant duly signed by the plaintiff. The document Exh. P. 3 was sent on demand by the plaintiff at Karachi Exh. P. 4 was also sent by the plaintiff at Karachi on 13.10.1991 and in October, 1991 we sent the Credit Card from Karachi and sent the document Exh.P. 5 for signatures and return Exh.P. 5 also carries the terms and conditions on its reverse side. The plaintiff received the card and the plaintiff used the Green Card from the year, 1991 to 1995 and then they gave him a Gold Card which is Exh.P.
7. The Gold Card was received by the plaintiff and returned to them. The correspondence was sent to the plaintiff from Karachi and the legal notice Exh. P. 8 was sent by the plaintiff to the defendant from Karachi. Therefore, the Courts. At Karachi have got the jurisdiction. As in order to secure the credit facility the Agreement is to be signed and the base office is at Hong Kong and all the original record is in Hong Kong. At Karachi they only keep the photo copy Exh.P. 1 to Exh. P. 8 are the attested copies, Under objection) of the learned counsel for the plaintiff that these documents are not certified copies nor they can be produced in evidence. In cross-examination he has stated that Exh.P..
1. To Exh.P. 8 relate to Card No. 376984458522001 and the 'Card belongs to 1991 and this is a Green Card. The disputed Card number is 376983669331004. On the billing of the plaintiff the Gold Card number was noted and billing has been up graded. He admitted that the petitioner issued a new Card on an application and in this way a new Card comes into existence. The new and old terms and conditions are the same. These are standard terms and conditions. He also admitted that Exh.P. 1 does not carry signatures of the plaintiff. He also admitted that Clause 19 also does not bear his signatures with are part and parcel of the terms and conditions as these are the specimen. He also admitted that the plaintiff has got no signatures on Exh.P. 2 and Exh.P. 7 does not carry the terms and conditions on its reverse side as it is standard . As the photo copy of the reverse side could not be made available and the record was misplaced in Hong Kong and we have tried to get the original record from Hong Kong and have come to know that the original record has been misplaced and still are making efforts for getting the original record. He also admitted that they have an office of Travel Related Services at Mall Road and they facilitate the Card. They also received the payment and sent it to Karachi and the Card is sent directly from Karachi.
12. From the perusal of the oral as well as documentary evidence there is no substance available on record to interfere in the impugned orders passed by the learned Trial Court the instant Civil Revision is dismissed. No order as to costs.