' The petitioners have taken the exception, through this petition, to the judgment dated 3-7-2003 passed by respondent No,1/Additional District Judge, Sialkot in revision, whereby, the order dated 16-4-2003 passed by learned Civil Judge, Sialkot, allowing the production of additional evidence to the petitioners, was set aside.
2. Facts giving rise to the present writ petition are to the effect that Mst. Aziza Bibi, plaintiff- respondent No,2 had filed a suit for declaration with possession through partition, wherein, it was alleged that she is the widow of Abdul Rashid (deceased) who was owner in possession of the property in dispute and she claimed her legal share left by her deceased husband and prayed for the same through partition of the property. The defendants-petitioners contested the suit taking a specific stand that Abdul Rashid deceased had divorced her wife in the year 1983. He had married with some other woman who was also divorced by him in his life time. It was specifically pleaded that Mst. Aziza Bibi was not entitled for any share in the property left by her husband Abdul Rashid.
3. During the pendency of the proceedings of the suit, the defendants had filed an application for seeking permission to produce secondary evidence about `Talaqnama/divorce deed allegedly executed by Abdul Rashid/husband on 5-1-1983 which was accepted by the trial Court on 16-4- 2003. Feeling aggrieved, the plaintiff-respondent filed a revision petition before the learned Additional District Judge, who vide impugned judgment and decree dated 3-7-2003 accepted the same, setting aside the findings of the trial Court, observing that no `Talaqnama' was ever executed by Abdul Rashid, husband of plaintiff and the legal heirs of the deceased instead of giving her legal share had tried to deprive her from her legal share from the property of her husband and thus have forged the document of "Talaqnama."
4. Learned counsel for the petitioners argued that the learned Executing Court had summoned the Secretary, Union Council concerned with record and the impugned judgment was passed without affording an opportunity to the petitioners to controvert the record produced by the Secretary, Union Council. He relied on case of Ghee Corporation of Pakistan v. Sheikh Abdul Haq and another 1990 SCM R 1581.
5. On the other hand, learned counsel for the respondents has vehemently opposed the argument of learned counsel for the petitioners, supporting the judgment passed by the revisional Court, contending that the petitioners had failed to show that the original document was executed and lost.
6. I have heard the learned counsel for the parties and perused the record.
7. The petitioners had applied to the Court on 14-4-2003 for permission to produce secondary evidence of the divorce deed allegedly executed by husband of the plaintiff in his life time, divorcing the plaintiff. The secondary evidence relating to document would be given as provided in Article 76 of the Qanoon-e-Shahadat Order, 1984 in the following cases.
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court; or of any person legally bound to produce it; and when, after the notice mentioned in Art.77, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect produce it in reasonable time; ' when due to the volume or bulk of the original copies thereof have been made by means of microfilming or other modern devices; ' when the original is of such a nature as not to be easily movable; ' when the original is a public document within the meaning of Article 85; ' when the original is a document of which a certified copy is permitted by this Order, or by any other law in force in Pakistan, to be given in evidence;
(h) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection;
(i) when an original document forming part of a judicial record is not available and only a certified copy thereof is available, certified copy of that certified copy shall also be admissible as a secondary evidence.
' It has further been provided in Article 77 of the Order that secondary evidence of the contents of the documents referred to in Article 76, paragraph (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in, whose possession or power the document is, or to his Advocate such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case. The requirement of law for production of secondary evidence is that the party in whose possession the document to be produced is given notice for production of the same in the Court or that it is proved when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court; or of any person legally bound to produce it, and when, after the notice mentioned in Article 77, such person does not produce it or when the original has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.
8. In the application for permission to produce additional evidence, it is not made out that any notice under Article 77 of the Qanun-e-Shahadat Order had ever been issued through Court in prescribed manner to the plaintiff-respondent to produce the document/Talaqnama. There is also no proof on the record that whether such -Talaqnama' was ever reduced into writing or ever sent to her by her deceased husband. Further the said application was not supported by any affidavit.
The application for production of additional evidence must give full detail as laid down in case of State of Rajasthan v. Khemraj AIR 2000 SC 1759.
9. As emerges in Clause 'C' of Article 76 of Qanun-e-Shahadat Order that proof of loss of document was the condition precedent to permission to lead secondary evidence. Where the loss of document was not proved, secondary evidence would become valueless. Reliance in this context can be made to the case of Mukhtar Ahmad v. Muhammad Yunus 2001 CLC 1796.
10. The record did not suggest that original document was lost or was not ailable or that same could not be produced without inordinate delay or that same was available on record of case in any other Court. The secondary evidence cannot be allowed to be produced unless conditions laid down in Article 76 of Qanun-e-Shahadat for production of secondary evidence stood satisfied.
Reference in this respect can be made to case of Muhammad Azam v. Abdullah 1999 CLC 200.
11. As observed earlier in the preceding paragraphs, no document of `Talaq-deed' by deceased husband of the plaintiff-respondent either in original or in photostat was available on the file of the case. Learned Appellate Court had summoned the Secretary, Union Council concerned in the Court in the presence of the parties who appeared and categorically stated that he brought with him the Register of entries of cases of Muslim Family Law from 15-7-1980 to 26-9-2001 and there is no entry of any such divorce issued by Abdul Rashid deceased in the name of Mst. Aziza Bibi plaintiff. On 26- 6-2003 the Court had passed the order for summoning Secretary Union Council who appeared on 3-7-2003 and the Court after recording his statement and examining the record gave observation that there was no `Talaqnama' in the office of Secretary, Union Council. The petitioner has prayed through the application for production of oral evidence of the execution of Talaq-deed and it has been held in case of Kalsoom Akhtar v. Fazal Noor 2000 M LD 1653 that when any transaction had been drawn and executed in form of document, no oral evidence could be allowed to be produced to prove same unless it was shown that original document had been lost or could not be produced or procured and that too, after obtaining permission from the Court for production of secondary evidence.
12. The provision of Article 76 of Qanun-e-Shahadat Order for production of secondary evidence had been examined by the Honourable Supreme Court of Pakistan in Mst. Khurshid Begum's case reported as 1995 SCM R 1237. In this case, plaintiff was allowed to lead secondary evidence in proof of his agreement to sell and the receipt relating to payment of earnest money, on his application to the effect that originals having been lost, he be allowed to lead secondary evidence alongwith the proof of loss of original documents. The plaintiff's suit was decreed on the basis of secondary evidence. Appellate Court, however, set aside such decree on the ground that plaintiff having not proved loss of original documents was not entitled to decree. High Court set aside the order of Appellate Court on the ground that in earlier round of litigation, question of loss of original documents as decided by revisional Court, having attained finality, could not have been reopened.
Honourable Judges of Supreme Court have observed that High Court fell in error in refusing to examine the question whether plaintiff had succeeded in establishing loss of original documents on assumption that point of allowing secondary evidence due to alleged loss of original documents had attained finality. It means that it is the mandatory provision of law that party claiming the production of secondary evidence has prove the loss of original document.
13. Learned counsel for the petitioners when confronted with the above-referred proposition of law could not persuade this Court to interfere with the impugned revisional Court's order and miserably failed to point out any illegality or jurisdictional defect in the impugned order passed by the lower appellate/revisional Court. The case-law referred to by the learned counsel for the petitioners is not applicable to the facts and circumstances of this case.
14. The another aspect of the case is that the judgment dated 3-7-2003 assailed through this writ petition had been passed by the Additional District Judge while exercising its revisional jurisdiction and the writ against a revisional order would not be competent unless it is proved that it was perverse and coram non judice. Reliance in this respect can be made to the cases of Muhammad Zahoor v. Lal Muhammad 1988 SCM R 322; Noor Muhammad v. Sarwar Khan PLD 1985 SC 131 and Muhammad Khan v. Mst. Ghulam Fatima 1991 SCM R 970.
15. For the foregoing reasons I see no force in this writ petition, hence, the same is dismissed with no order as to costs.