This order will dispose of Civil Revisions Nos.370 and 517 of 2002.
2. Facts giving rise to the present revision petitions are to the effect that Islam--ul-Haq plaintiff- respondent herein had filed a suit under Order 37, rule 2, C.P.C. For the recovery of Rs.26,13,624 with mark-up against the defendant-petitioner herein on the basis of two cheques bearing Nos.864899 and 864900 issued on 31-8-1996. The plaint was returned under Order 7, rule 10, C.P.C. By the learned Additional District Judge, Islamabad vide his order dated 27-9-2000 for presenting the same in the Civil Court. This order has been assailed by the petitioner in appeal and the High Court vide its judgment dated 10-12-2001 set aside the order of the trial Court and remanded the case to the learned Additional District Judge to record the evidence of the defendant. The leave to appeal was also dismissed by the Honourable Supreme Court.
3. After the remand of the case, the Court had directed the petitioner to conclude the evidence and during the recording of his evidence on 4-6-2000, the petitioner has filed two applications, one for production of evidence and the second for summoning the petitioner for further cross- examination. Both these applications were dismissed vide order dated 5-6-2002 by the trial Court/Additional District Judge, Islamabad. The said order has been assailed through the instant separate civil revisions.
4. At the very outset learned counsel respondent objected that the application for declining the additional evidence is not a 'case decided' and he made his reliance on the case of Nawabzada Malik Habibullah Khan v. The Pak Cement Industries Limited and others (1969 SCMR 965). He further contended that the petitioner has not assigned any reason for producing the additional evidence at a belated stage. He relied upon a case of Messrs Liyas Mortine & Associates (Pvt.) Ltd. v.
Muhammad Amin Lakhani and others (1999 MLD 3018).
5. On the other hand learned counsel for the petitioner contended that the defence/evidence was not closed and the production of additional evidence and re--calling of the petitioner for further cross---examination was essential for just decision of the case. He further contended that the dismissal of the application of the plaintiff on the question of delay is not .a judicious exercise of judicial power. He relied on the case of Makhdoom Ahmed Mahmood v. Mst. Fouzia Hussain and others (1995 MLD 1164). Further contended that the order of allowing or declining additional evidence is a 'case decided' and falls within the provisions of section 115, C.P.C. Relies on Feroz Din v.
Muhammad Amin PLD 1993 Lahore 774 and Messrs National Security Insurance Company Limited and others v. Messrs Hoechst Pakistan Limited and others 1992 SCMR 718. Further contended that the Court is empowered for recalling of any witness for cross-examination, already cross--- examined.
6. I have heard the arguments of the learned counsel for the parties and perused the record.
7. The proposition that declining of the application for production of additional evidence is not a 'case decided' has already been settled by the Honourable superior Courts. In case Khurshid Ali and 6 others v. Shah Nazar (PLD 1992 SC 822), the Honourable Judges of the Supreme Court have observed that mere failure to exhibit a document formally would not make any difference and, if it was necessary for just decision of the case, to summon the material relied upon by the party, it should be summoned and treated as evidence in the matter without any formalities. Where the trial Court had committed the error in not summoning the original record and other material evidence for just decision of the case. Supreme Court remanded the case to trial Court for fresh decision. In another case Messrs National Security Insurance Company Limited (supra), it was observed that expression 'case decided' does not necessarily mean the decision of the entire suit, it may relate to a decision of an interlocutory matter requiring judicial mind. Where the interlocutory order was passed by the Court on no material and ex facie it appeared to be perverse such order could be interfered in revision. In other case of Feroz Din (supra), the Lahore High Court has observed that the order allowing or declining to allow production of evidence whether amounts to 'case decided' within meaning of section 115, Civil Procedure Code and was thus, amenable to correction in the exercise of revisional jurisdiction. In case of Makhdoom Ahmed Mahmood (supra), the Honourable Single Judge of this Court had held that rules of procedure were intended to advance and sub-serve cause of justice, rather than to obstruct it. Grounds of mere delay was insufficient to deny production of documentary evidence which otherwise appeared to be relevant and free from taint of suspicion.
8. The objection of learned counsel for respondent that disallowing the application for production of additional evidence is not a 'case decided' being misconceived is repelled. By following the dictum laid down by the superior Courts, it is held that the application for allowing or disallowing the additional evidence is a 'case decided' and covered within the ambit of section 115, C.P.C.
9. Rule 2 of Order 13, C.P.C. Emerges that 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. The petitioner in his application under Order 13, rule 2, C.P.C. Has not shown any good cause and failed to satisfy the Court allowing the additional evidence to him which is the only criterion for production of additional evidence. This argument is further strengthened from the case of Muhammad Umar Mirza v. Waris Iqbal and others (1990 SCMR 964) wherein it was observed that no satisfactory explanation was given by defendant as to why he did not produce the documents at the first hearing of suit and the trial Court had disallowed the application for production of additional evidence. The Honourable Judges of the Supreme Court observed that the trial Court had thus not acted arbitrarily in circumstances and no principle of law having been violated by the trial Court and refused to interfere with the said order. The purpose of Order 13, C.P.C. Is not to fill in the lacuna in the evidence of the party concerned. Where hearing in a case had commenced, the permission to file documents should be granted as an exception rather than as a rule. In this context reference can be made to the case of Messrs Liyas Mortine and Associates (supra).
10. As to the case of re-calling of P.W.1 for cross-examination, the power has been vested on the Court under Order 18, rule 17, C.P.C. Which envisaged that the Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit. Witnesses are usually recalled for the purpose of hearing ambiguities or supplying omission but the power should be exercised in exceptional circumstances only. In the case of Messrs Ilyas Marine and Associates Ltd. v.
Muhammad Amin Lasania and another (1997 CLC 763), it has been observed that the Court had discretion to recall any witness who had already been examined, and put necessary question to him. Power of recalling witness could be exercised suo motu by Court or on application moved by any party in suit. Such discretion, however, must be exercised judiciously looking to circumstances of each case and not to fill lacunae in evidence of any party in suit. Party making such application has to advance reasonable and convincing grounds for recalling witness and after Court was satisfied that for proper adjudication of case, such discretion must be exercised.
11. In the instant case, the Court did not think fit to recalling of the witness. Learned counsel for the petitioner has not been able to advance any good cause and sufficient reason for production of additional evidence and recall of the P.W.1 for further cross-examination. Learned counsel for the petitioner has failed to point out any illegality in the impugned judgment.
12. For the foregoing reasons, these revision petitions having no force are dismissed.
F.M./S-642/L