MUHAMMAD MOOSA K. LAGHARI, J CMA No. 1115/2002.
This is an application u/S. 151, CPC moved on behalf of the plaintiffs praying therein that the documents Annexures '1' to '6' and Annexures 'A' to ' F." as attached with the application be exhibited or in the alternate should be taken on record as part of the evidence in the above matter.
1. The facts giving rise to filing of this application as narrated therein are that on 12..4.2001 documents Annexures ' 1' to ' 6' were filed before the Commissioner for recording of evidence alongwith list of documents and witnesses. Subsequently affidavit-in-evidence was filed by plaintiffs wherein also the said documents were referred to. It is stated in the application that on 3.8.2001. Defendants' counsel filed interrogatories (Annexure Z/A) and on 6.8.2001 plaintiffs' counsel filed reply (Annexure Z/B) to the same. As stated in the application plaintiffs counsel presumed that the documents were taken on record as part of the evidence but it was discovered by her at the later stage that the aforesaid documents were not taken on record.
As stated in the application second set of documents Annexures ' A' to ' E' were undertaken to be supplied by the defendant witness during his cross-examination on 2.10.2001 and subsequently were handed over by the defendant's counsel to the plaintiffs' counsel. It was presumed by the plaintiffs counsel that the said documents were also taken as part of the evidence, however at later stage it was discovered by her that those documents were not taken on record.
2. This application is supported by the affidavit of Ms. Rizwana Ismail, learned counsel appearing for plaintiffs.
3. Counter-affidavit to the said application has been filed by Mrs. Yasmin R. Minhas, defendant No. 1 in the case. It is averred on oath that it was specifically stated by the counsel for the plaintiffs that further evidence will be strictly confined to the two additional issues, hence by order dated 28.3.2001 plaintiffs were permitted to lead further evidence on two additional issues framed on the said date, which were as follows:-
(1) Whether the construction and/or running of the school on the impugned plot has violated of vested rights of the plaintiffs?
(2) Whether the construction and/or running of the school on the impugned plot create a nuisance to the plaintiffs?
It is stated in the counter-affidavit that the documents attached as Annexures ' A' to ' E' to the application were produced by the defendant No. 8 not on his own but pursuant to a notice served by the plaintiffs' counsel under the provisions of Order 12, Rule 8, CPC. It was stated that since the plaintiff's witness Aziz jamal was not the author of remaining documents thus an objection was raised that the said documents could not be produced through him. It was further stated in the counter-affidavit that copies of these documents were neither filed with the affidavit-in-evidence used before the Commissioner nor copy thereof was supplied to the counsel for the defendants.
Though the documents were filed on 12.4.2001 in the office of High Court together with list of documents, but were never exhibited while according evidence before the Commissioner. It was further stated that the application was just another tactic on the part of the plaintiffs to delay adjudication of the case on merits.
4. Affidavit-in-rejoinder to the counter-affidavit was filed on behalf of the plaintiffs which was sworn by Ms. Rizwana Ismail, learned counsel for the plaintiffs whereby the contents of counter- affidavit were denied.
5. I have heard Ms. Rizwana Ismail, learned counsel appearing on behalf of the plaintiffs. Mr. Muneer A. Malik, Advocate, advanced arguments -on behalf of defendants Nos. 1 and 8. Counsel for rest of the defendants adopted the arguments rendered by Mr. Muneer A. Malik, Advocate.
PLD 1990 SC 661 and (iv) a Single Bench order of Lahore High Court, reported in 2001 YLR 2350.
7. Conversely, Mr. Muneer A. Malik, learned counsel for defendant No. 8 at the very outset submitted that the application was tainted with malice as object of the plaintiffs was to protract the proceedings. It was specifically alleged that this was third attempt made by the plaintiffs to re- open the evidence in the case. On merits it was contended that it was duty of the plaintiffs to have produced and exhibited the documents in evidence but the plaintiffs failed to get it done. It was argued that the plaintiffs were making attempts to get expert's report and sketch plan produced and exhibited on record without the author of report being tendered in evidence. J-le argued that said report did not form part of judicial record. Learned counsel vehemently opposed the exhibition of photographs on the ground that the matter was to be decided on the basis of evidence and not on the basis of photographs, which were sought to be produced without ascertaining their correctness. This was bound to prejudice the case of the defendants.
8. I have given due consideration to the arguments advanced at the bar, and persued the material placed on the record. I have also examined the documents sought to be produced on record.
Besides, I have had the advantage of going through the case-law relied upon by learned counsel for plaintiffs.
9. There can hardly be any dispute with regard to the proposition that no-one should suffer by ay act of a Court. However, as apparent from the record and facts of the case, no prejudice was caused to the plaintiffs on account of any act of learned Commissioner as alleged. It was duty of the plaintiff's counsel to have got the documents exhibited in evidence while recording evidence.
Merely because the documents find mention in the affidavit-in-evidence, those could not be deemed to have been received in evidence. A party cannot be absolved of responsibility to get the documents properly exhibited. This provides an opportunity to the other side to raise objection with regard. To the admissibility and genuineness or otherwise of the documents sought to be tendered in evidence. Admittedly these documents were not produced with affidavit-in-evidence resultantly, the other side had no occasion/chance to challenge the admissibility or veracity of such documents. The contents of the application itself reveal that it was ' presumed' by the counsel that the documents were exhibited, but subsequently it was discovered to be otherwise. This fact itself was adequate enough to show that it was the counsel who acted in a careless manner, she did not take here cause vigilantly and diligently, instead, left the matter on mere ' presumptions' but such presumptions proved to be factually incorrect. The contention raised by learned counsel for plaintiffs, to the effect that it was an act of the Court, is totally baseless, contrary to the facts, perverse and misconceived as such the same is repelled.
10. The inspection and the survey report submitted by an Archited filed alongwith the Official Assignee's reference at no stage of the case, was made part of the record. Thus it could not, by any stretch of imagination be termed to be. judicial record' as contended by the learned counsel for the plaintiffs . It will be noted that the.
Official Assignee in this case was directed to inspect the site in pursuance of an application u/O. 18, Rule 18, C.P.C., moved by the plaintiffs for the purpose of giving report regarding the stage of the construction of disputed plot. The Official Assignee was also allowed to 'engage any professional i.e. Architect, Engineer etc. It appears that in pursuance of the order, Official Assignee engaged a professional Architect and submitted his report dated 12.4.1999 which relates to a particular point, and is confined to a specific purpose. Such report of Architect submitted alongwith Official Assignee's reference did neither form part of any judicial proceedings nor the same was carried out for the purpose of resolving controversy in the main suit. The perusal of the record shows that the Official Assignee's reference came to be considered by this Court; and vide order dated 2.9.1999 an issue to that effect was framed. Thus the purpose of carrying out the inspection was achieved. The contentions raised by learned counsel for plaintiffs in this regard is ill-founded.
It appears that though an issue was framed by the Court but the plaintiffs thought it fit not to lead any evidence or for that matter took steps for production report of the Architect. Since the Architect who was author of the survey report was not tendered in evidence and the other side had no opportunity to cross-examine him, allowing of this report to be produced on record at this stage when the evidence has been concluded was bound to prejudice the case of defendants. There are sufficient reasons to believe that by way of producing Expert's report plaintiffs intend to fill in the gap in the case which could not be permitted as It would amount to allowing a party to derive benefit out of its own follies.
It may not be out of place to mention that the power of inspection of the property was discretionary and in peculiar circumstances the inspection of location may be necessary and helpful in deciding a case, but it is well-settled that it should not be substituted as an evidence, which otherwise is required to be produced by a party. For these reasons I do not see any justification for allowing the report of the Architect to be exhibited.
11. Insofar as the photographs are concerned, Ms. Rizwana Ismail, learned counsel for plaintiffs was specifically asked as to how photographs could be exhibited and made part of evidence as the defendant did not have an opportunity or there was no occasion for him to cross-examine the witness with regard to the genuineness of the photographs. She was not able to give any explanation worth consideration. Even no explanation was forthcoming as to how the case of the plaintiffs could be proved on the basis of photographs sought to be produced in evidence. Learned counsel for plaintiffs has specifically relied upon the England Case to argue that the photographs Could be admissible in evidence. The photographs may have been admissible in evidence, subject however, it was proved through witness that the prints are taken from the negatives that are untouched as has been observed in the very authority relied upon by the learned counsel for plaintiffs. The fact which cannot be lost sight of, is, that this authority relates to the year 1965, and, now technology has so immensely advanced, that the photograph: or even Video tapes can be manipulated and manoeuvred. Advancement in the technology besides being advantageous, has also caused adverse affect on the society. Commission of cyber crime was not imaginable three decades before. In such circumstances unless it is proved that the photographs are not manipulated, these could not be allowed to be produced in evidence.
12. The Supreme Court authority reported in 1992 SCM R 1778, relied upon by the learned. Counsel for plaintiffs is to the effect that where one or the other party had failed to request for proper examination of the disputed documents/signatures the Court had ample power to do the needful so as to advance justice. In PLD 1990 SC 661, it has been held by the apex Court that Trial Court was not denuded of power to summon all the necessary revenue record and also to summon the Patwari so as to supply omissions from both sides in exercise of powers u/O. XLI, Rule 27, CPC.
13. There is no cavil to the above legal propositions, but with utmost humility, I am contained to say that, the above authorities are not attracted and are hardly relevant in the facts and circumstances of the case in hand. I have also earnestly considered the contention raised by learned counsle, for the plaintiffs regarding applicability of Articles 19 and 76 of Qanun-e-Shahadat Order, 1984, but found the same to be devoid of merit. It is settled principle of law that the plaintiff has to prove his case by leading independent evidence.
14. The documents referred in the application as Annexures ' A' to ' E' were supplied to the learned counsel for plaintiffs in pursuance of notice served by her to the defendant. Copy of the said notice has been annexed with the counter-affidavit and this assertion has not been denied. In the counter-affidavit the order dated 9.10.2001 of this Court has been reproduced wherein it was observed as under:- "Learned counsel for defendants Nos. 1 and 8 has filed certain documents alongwith a statement in pursuance of the notice u/O. 12, R. 8, CPC. The documents are taken on record, copy whereof has been supplied to the learned counsel for plaintiff who intends to file an application. She may do so.
Adjourned to 18.10.2001."
(underlined by me)."
It is obviously clear from the above order that the plaintiffs made a request for filing proper application, but the same was never filed. The cumulative effect which can be deduced from the above facts is that the learned counsel for plaintiffs has not acted in a diligent manner. In such circumstances it will be extremely unfair and unjust to allow the production of such documents in evidence.
15. It is well-settled that the exercise of inherent powers available to this Court u/S. 151, CPC should not affect the substantive rights of the party or to defeat general principles of law. Such powers could not be exercised to condone gross negligence on the part of the parties.
16. In the circumstances, the utmost relief which could be granted to the plaintiffs, in the interest of justice is that instant application is allowed to the extent that the following documents shall be exhibited in evidence:
(i) Copy of the Plaint.
(ii) Copy of application under Order 26, Rule 9, CPC.
(iii) Copy of counter-affidavit to C.M.A. No. 10723/1998.
The prayer with regard to remaining documents for taking them on record and producing the same in evidence. Is rejected as being without merit.
2. The matter is already fixed for arguments on 28.3.2002 at 11.00 a.m.