P L D 2020 Balochistan 5
Before Muhammad Ejaz Swati and Zaheer- ud-Din Kakar, JJ
SHAH MUHAMMAD and 9 others ---Petitioners
Versus
HABIBULLAH and 25 others ---Respondents
Constitution Petition No.(S)43 of 2019, decided on 5th September, 2019.
(a) Civil Procedure Code (V of 1908) ---
----O. VII, R. 14, O. XIII, Rr. 1, 2, 3 & O. XVI, Rr. 1 & 2---Qanun -e-Shahadat (10 of 1984),
Arts. 90 & 134--- Specific Relief Act (I of 1877), S. 42--- Suit for declaration ---Production of
document not relied upon---Good cause ---Scope ---Phrase 'good cause' to be construed
liberally to serve the ends of justice ---Rational behind O. XIII, R. 2, of C.P.C. was to prevent
fraud and not to penalize the parties for non- production of documents on the first hearing of
the suit or at the time of filing of plaint or written statement---If there was no element of
fraud or doubt as to authenticity of documents then application for production of documents
could not be discarded--- List of witnesses should be filed within seven days from framing of
issues ---No one could be permitted to call witnesses other than those mentioned in the list
except with the permission of Court on showing good cause for omission of said witnesses from the list---Delinquent party for calling a witness through Court ha d to show good cause
and explain the delay in disclosing the name of witnesses ---Document required to be
produced was public document having presumption of truth and it should not be discarded unless proved otherwise by convicing and cogent evidence ---Person summoned to produce a
document did not become a witness by mere fact that the had produced the same ---
Constitutional petition was dismissed, in circumstances. PLD 2013 SC 255 foll.
(b) Civil Procedure Code (V of 1908) ---
----O. XIII, R.2--- "Good cause "---Connotation.
The phrase "good cause" means adequate sound and genuine reason and it depends
upon the facts and circumstances of each case, no hard and fast and absolute criteria can be set forth, as to what constitutes a good cause, however, the phras e "good cause" used in
Order XIII, Rule 2, C.P.C. should be construed liberally to serve the ends of justice. Order XIII, Rule 2, C.P.C. being a general provision applicable to both i.e. the plaintiffs as well as defendants. The rationale behind Order XIII , Rule 2, C.P.C. is to prevent the fraud and not to
penalize the parties for non- production of documents on the first hearing of the suit or at the
time of filing plaint or written statement, if there is no element of fraud or doubt as to authenticity of t he documents that the application ought not to be discarded as Rule 2 and the
procedure are intended to advance balance on showing "good cause".
(c) Civil Procedure Code (V of 1908) ---
----O.XVI, Rr. 1 & 2--- Filing of list of witnesses after settlement of issues ---Time frame ---
Calling of witnesses other than those in the said list ---Scope and requirements.
Provision of Order XVI(1), C.P.C. is mandatory by using word "shall" giving
timeframe of seven days to the party to file list of witnesses after settle ment of issues and
Sub- rule (2) further prohibits that the party "shall not" be permitted to call witnesses other
than those in the said list except with the permission of the Court on showing "good cause" for the omission of the said witnesses from the li st, therefore, not only the 'good cause" has
to be shown by the delinquent party for calling a witness through the Court but at the same time the applicant is required to explain the delay in disclosing the name of the witnesses.
Anwar -ul-Haq Chaudhr y for Petitioners.
Habib -ur-Rehman for Respondents Nos. 1 to 13.
Muhammad Nasir Mari for Respondent No.4.
Date of hearing: 29th August,2019.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --The respondents Nos.1 to 13 (plaintiffs) filed a
suit for declaration, partit ion, possession, mesne profit and permanent injunction against the
petitioners (defendants) and respondents (defendants) Nos. 14 to 26 with the averment that
one Karam Khan was owner of properties of the subject matter of the suit, who died in the year 1980. It was alleged that Mst. Dur Bibi, Bakht Bibi and Noor Bibi were daughters of late Karam Khan and plaintiffs and respondents (defendants) Nos. 17 to 19 being successors -
in-interest are entitled for their respective share through Mst. Dur Bibi and Bakht Bibi.
2. The petitioners/plaintiffs contested the suit by way of filing written statement and
alleged that Mst. Dur Bibi, Bakht Bibi and Noor Bibi were not daughters of Shakar Khan.
3. During proceedings before the trial Court, the plaintiffs filed an application under
Order XIII(1)(2) Order XVI(1)(2) read with section 151 of the Civil Procedure Code (C.P.C), wherein at paragraph No.4 of the application, it is pleaded as under:
"That the applicants/plaintiffs are intends (sic) to produce the RTS from of the Dur Bibi daughter of Karam Khan and Bakht Bibi daughter of Karam Khan which are required to be produced in this Court through the representative of the NADRA in order to estab lish their pea (sic) and to assist this court to reach the end of the justice,
hence this application."
4. The petitioners contested the application by way of filing reply to the application. The
learned Senior Civil Judge, Sibi (hereinafter the "trial Court") vide order dated 5th March 2019 dismissed the application. On Civil Revision Petition under section 115, C.P.C. filed by the respondents Nos.1 to 13 (plaintiffs), the learned Additional District Judge, Sibi
(hereinafter the "appellate Court") vide order dated 12th April 2019 (hereinafter the "impugned order") partly allowed the petition to produce RTC Form of Bakht Bibi and late Dur Bibi through concerned representative of NADRA.
5. Learned counsel for the petitioners mainly contended that in the impug ned order, the
application is allowed to the extent of Order XIII Rules 1 and 2, C.P.C. while said application was dismissed to the extent of additional evidence, therefore, direction for producing RTC through representative of NADRA amounts to be an addit ional evidence,
which as per impugned order has been declined, as such the impugned order cannot be sustained under the law.
6. Learned counsel for the respondents Nos.1 to 13 contended that the petitioners in
written statements had denied relationship of their precedessor -in-interest, therefore, the need
for producing above document after filing of the suit is not tenable; that in respect of relationship, the above public document is essential for just decision of the case.
7. We have heard the learned cou nsel for the parties, perused the record and law
governing the issue. The respondents Nos.1 to 13 (plaintiffs) had filed application under Order XIII Rules I and 2 and Order XVI, Rules 1 and 2, C.P.C. read with section 151, C.P.C. The revisional Court whil e partly allowing the Civil Revision Petition allowed the
application to the extent of Order XIII, Rules 1 and 2, C.P.C. allowed the plaintiffs to produce the RTC through representative of NADRA, but dismissed the application to the extent of Order XVI, Ru les 1 and 2, C.P.C.
Order XIII Rule 1, C.P.C. provides that the parties or their pleaders shall produce at
the first hearing of the suit all documentary evidence of every descriptions in their possession
or power on which they intend to rely and which has not already been filed in the Court and
all the documents which the Court has ordered to be produced. Sub- Rule (3) of Order
XIII, C.P.C. further provides that on production of documents under this rule, the Court may
call upon the parties to adm it or deny the documents produced in Court and record their
admission or denial or as the case may be, however, where the party fails to produce the
documents under Rule 1 of Order XIII or under Order VII, Rule 14, C.P.C. Order XIII Rule 2 is a rider which provides that if party failed to produce documents in their possession or
power in accordance with requirement of the rule, shall be received at any stage of the proceedings on showing "good issue" to the satisfaction of the Court for non- production
thereof and the Court receiving any such evidence shall record the reasons for doing so.
The phrase "good cause" means adequate sound and genuine reason and it depends
upon the facts and circumstances of each case, no hard and fast and absolute criteria can be
set forth, as to what constitutes a good cause, however, the phrase "good cause" used in Order XIII, Rule 2, C.P.C. should be construed liberally to serve the ends of justice. Order XIII, Rule 2, C.P.C. being a general provision applicable to both i.e. th e plaintiffs as well as
defendants. The rationale behind Order XIII, Rule 2, C.P.C. is to prevent the fraud and not to penalize the parties for non- production of documents on the first hearing of the suit or at the
time of filing plaint or written statemen t, if there is no element of fraud or doubt as to
authenticity of the documents that the application ought not to be discarded as Rule 2 and the procedure are intended to advance balance on showing "good cause".
The provision of Order XVI (1), C.P.C. is m andatory by using word "shall" giving
timeframe of seven days to the party to file list of witnesses after settlement of issues and Sub- rule (2) further prohibits that the party "shall not" be permitted to call witnesses other
than those in the said list e xcept with the permission of the Court on showing "good cause"
for the omission of the said witnesses from the list, therefore, not only the 'good cause" has to be shown by the delinquent party for calling a witness through the Court but at the same time, the applicant is required to explain the delay in disclosing the name of the witnesses.
Reference in this respect is to be made to case reported in PLD 2013 SC 255.
7(sic). In the instant case, the respondents Nos.1 to 12 (plaintiffs) had claimed their sha re
from the inherited property of late Karam Khan being successor -in-interest of Dur Bibi
daughter of Karam Khan and respondent No.13 (plaintiff) namely Bakht Bibi being daughter of late Karam Khan. The petitioners categorically stated that Dur Bibi, Bakht Bibi and Noor
Bibi (mother of respondents Nos.17. to 19/defendants Nos.10 to 12) are not daughters of late Karam Khan and thus denied relationship. The respondents Nos.1 to 13 though concluded their evidence, however, the revisional Court allowed them to produce RTC through representative of NADRA and declined the relief regarding Order XVI, Rule 2, C.P.C. Since RTC is a public document falls under Article 90 of the Qanun- e-Shahadat Order, 1984 (the
Order 1984), to which presumption of truth is attached, c annot be discarded unless proved
otherwise by convincing and cogent evidence. A person summoned to produce a document does not become a witness by mere fact that he produces it, therefore, in view of Article 134 of the Order, 1984, the impugned order warra nts no interference by this Court in exercise of
constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
In view of the above, Constitutional Petition No(S). 43 of 2019 is dismissed
accordingly.
ZC/105/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.