This revision petition is directed against order dated 28-7-1998 passed by Civil Judge, 1st Class D.G.
Khan whereby he dismissed the writ petitioner's application under Order XIII rule 2 of Civil Procedure Code for producing additional evidence.
2. The respondent had filed a suit for specific performance of contract against the petitioner in respect of some immovable property. The suit was contested, issues were framed, the petitioner concluded his evidence after a lapse of about more than two years whereafter he moved an application for producing the following documents by way of additional evidence;
(i) Telegram dated 20-4-1992
(ii) Photocopy of messengers delivery report.
(iii) Receipts regarding despatch of some registered letter.
(iv) A.D. Receipt.
(v) Notice dated 8-4-1992 issued to Muhammad Usman property dealer and (vi)Notice dated 8-4-1992 issued to Sh. Sajjad Ahmad property dealer.
3. It was alleged that due to in-advertance the aforesaid documents could not be produced at the first hearing of the case.
4. The application was opposed by the other side and it was eventually dismissed by the learned trial Court as aforesaid. Reasons given by the learned trial Court for dismissing the application were that:
(1) Sufficient cause to the satisfaction of the Court for non-production of the documents at the first hearing of the suit was not shown and;
(2) documents were not per se admissible in evidence and no prayer was made for summoning the witnesses through whom the said documents were required to be proved.
5. Learned counsel for the petitioner, while assailing the impugned order, urged that
(a) The impugned order is against law and facts and .The trial Court did not see the application for additional evidence in its true perspective and thus committed material irregularity and illegality in the exercise of its jurisdiction in dismissing the same.
6. The petitioner is opposed by the learned counsel for the respondents. Arguments heard. Civil revision and all its annexures perused.
7. Under the provisions of Order XIII, rule 2 of C.P.C., documentary evidence in possession and power of a party cannot be received in evidence at a subsequent stage unless cause is shown to the satisfaction of the Court for non-production thereof at the first hearing of the suit.
8. Any decision under Order XIII, rule 2 of C.P.C., regarding satisfaction or otherwise, is the function of the trial Court which is vested with exclusive jurisdiction to decide such matter and an order of rejection under Order XIII, rule 2, Civil Procedure Code can be challenged in appeal under section 105 of C.P.C. As powers under rule 2 of C.P.C. are discretionary they cannot be pre-empted while exercising jurisdiction under section 115, Civil Procedure Code neither the discretion exercised by the trial Court can be disturbed in revision simply on the ground that another view was possible.
9. The term "acted illegally" means acting in breach of some provision of law and the words "acted with material irregularity" refer to committing of some material error of procedure in the course of trial.
10.Learned counsel for the petitioner could not draw. my attention to the breach of any provision of law or commission of any error of procedure by the learned trial Court in passing the impugned order.
11.A perusal of impugned order shows that it is reasonable and no principle of law was violated.
There was no satisfactory explanation given by the petitioner for not producing the documents at the first date of hearing of the suit. The trial Court had refused to receive the do aments on the ground that cause was not shown to its satisfaction for non-production of the documents at the proper stage.
12. It is, therefore, not a fit case for interference by way of revision. Civil revision is accordingly dismissed.