P L D 2021 Balochistan 139
Before Abdul Hameed Baloch, J
ABDUL KAREEM ---Petitioner
Versus
SULTAN BADSHAH ---Respondent
Civil Revision No. 05 of 2021, decided on 3rd May, 2021.
Civil Procedure Code (V of 1908) ---
----O. XIII, R. 2 & O. XXXVII, R. 2---Suit for recovery of money ---Additional evidence,
production of ---Principle ---Petitioner/defendant was aggrieved of permission granted under
O. XIII, R. 2, C.P.C. by Trial Court to respondent/plaintiff to place on record certain
document ---Validity ---Object of O. XIII, R. 2, C.P.C. was to exclude forged document and
expedite trial and not to exclude genuine document ---If there was no doubt as regards to
authenticity then for substantial justice such document was not to be refused to be received in
evidence merely on the ground of delay--- Trial Court was empowered under O. XIII, R. 2,
C.P.C. to allow production of document at later stage, if the document was essential for just decision of the case and also the document was free from any suspicion of being forged and fabricated ---High Court declined to interfere in order passed by Trial Court ---Revision was
dismissed, in circumstances.
Muhammad Musa v. Hamid Ali 2021 CLC 254; Trading Corporation of Pakistan
(Pvt.) Ltd. v. Haji Khuda Bux Amir Umar (Pvt.) Ltd. 2017 CLC 1387 and Firhan Faheem v.
District Judge 2003 CLC 1579 ref.
Shah Muhammad v. Habibullah PLD 2020 Bal. 5; Anwar Ahmad v. Mst. Nafis Bano
2005 SCMR 152; Muhammad Afzal v. Khush -Hal PLD 2004 Azad (J&K) 43; Faiz ullah's
case, PLD 1984 Azad (J&K) 41; Makhdoom Ahmed Mahmood v. Fouzia Hussain 1995 MLD 1164 and Kohinoor Tobacco Company (Pvt.) Ltd. v. S. M. Idrees Allawala 2013 CLC 1789 rel.
Abdul Jabbar and Farah Farooq for Petitioner.
Jamil Ahmed Khan Babai for R espondent.
Date of hearing: 13th April, 2021.
JUDGMENT
ABDUL HAMEED BALOCH, J .---The petitioner / defendant assailed order dated
16th December, 2020 (impugned order) passed by Additional District Judge -III, Quetta (trial
court) whereby the trial court allowed application under Order XIII, Rule 2, C.P.C. for
placing of documents on record.
2. Precise facts of the case are that respondent/plaintiff filed a suit under Order
XXXVII, Rule 2, C.P.C. for recovery of Rs. 8,000,000/ - (Rupees eight million) along with
mark/interest at prevailing bank rate against the petitioner/defendant. Aft er granting leave to
defend the petitioner/ defendant filed written statement, repudiated the contention of the respondent/ plaintiff. Initially the suit was decreed by the trial court vide judgment and decree dated 23rd July, 2012. The petitioner/ defenda nt being dissatisfied filed appeal/R.F.A.
No.88 of 2012 before this court, which was allowed vide judgment dated 18th February, 2014. Being aggrieved the respondent/plaintiff filed Civil Appeal No. 6- Q of 2014 before
Honorable Supreme Court of Pakistan and ultimately the matter was remanded to the trial
court vide order dated 30th September, 2020. After remand the respondent/ plaintiff filed an application under Order XIII, Rule 2, C.P.C. for placing documents on record, which was contested by the petitione r/defendant by filing rejoinder. The trial court vide impugned order
dated 16th December, 2020 allowed the application, hence the petitioner/ defendant is before this court.
3. Learned counsel for the petitioner/defendant contended that the respondent/plai ntiff
has filed application before the trial court with unclean hands and intend to place private documents on record which was neither pleaded nor annexed with the plaint. Where a party wants to produce documents belatedly he has to disclose reason for fi ling the document at
subsequent stage. The learned counsel placed reliance on Muhammad Musa v. Hamid Ali 2021 CLC 254 and Trading Corporation of Pakistan (Pvt.) Ltd. v. Haji Khuda Bux Amir Umar (Pvt.) Ltd. 2017 CLC 1387.
4. Conversely the learned counsel f or the respondent/ plaintiff stated that the respondent/
plaintiff had filed the instant suit on the basis of negotiable instrument, as such the documents with regard to the investment of the portion of amount with petitioner/defendant were not filed. Unde r Order XIII, Rules 1 and 2, C.P.C. the parties can produce documents
subsequently showing good cause. The procedural law should be liberally adhered. The documents relate to accounts. The learned counsel placed reliance on Firhan Faheem v. District Judge 2003 CLC 1579, Shah Muhammad v. Habibullah PLD 2020 Balochistan 5, Anwar Ahmad v. Mst. Nafis Bano 2005 SCMR 152 and Muhammad Afzal v. Khush- Hal
PLD 2004 Azad (J&K) 43.
5. Heard and have gone through the record with the assistance of learned counsel for the
parties. The Honorable Supreme Court vide order dated 30th September, 2020 remanded the matter to the trial court. The relevant portion of the order reads as under:
"4. Seen in the above perspective, it appears that the matter requires re- adjudication
by allowing the parties to produce additional evidence about the business between the
parties, payments by the appellant to the respondent and settlement of accounts between them. There is either no evidence or very scant evidence in respect of these aspects . Thus, we are inclined to remand the matter to the trial court with direction to
record additional evidence in the case to be produced by both the parties and thereafter, proceed to decide the same. As the matter is quite old, it is expected that
the tria l court shall decide the same within a period of six months from receipt of a
copy of this order."
6. After remand of the case the respondent/ plaintiff submitted an application under
Order XIII, Rule 2, C.P.C. for permission to produce the ledger prepared by the respondent/
plaintiff. The petitioner/ defendant filed rejoinder whereby strongly opposed the application.
The trial court vide order dated 16th December, 2020 accepted the application and granted permission to file the documents.
7. Before dilatin g upon the petition it would be relevant to reproduce Order XIII, Rule 2,
C.P.C.:
"Order XIII, Rule 2 C.P.C. Effect of non- production of documents. No documentary
evidence in the possession or power of any party which should have been but has not been pro duced in accordance with the requirements of rule I 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 evidences
hall reco rd the reasons for so doing."
8. The object of referred to Rule is to exclude forged documents and expedite the trial
and not to exclude genuine document. If there is no doubt as regard to authenticity of such document then for substantial justice should n ot be refused to receive such documents merely
on the ground of delay. In Faizullah's case PLD 1984 Azad (J&K) 41, it was held that "Order XIII, Rule 2, C.P.C. should be construed liberally bar contained in Order XIII, Rule 1, C.P.C. is not absolute." Reli ance is also placed on Makhdoom Ahmed Mahmood v. Fouzia Hussain
1995 MLD 1164, wherein it was held:
"2. Learned counsel for the rival parties have been heard. Documents sought to be
produced in evidence, permission whereof was sought under Order XIII, Rul e 2, Civil
P.C. have also been looked at. Without adverting to admissibility of documents, their
relevance to the point at issue and their probative force, as also their genuineness, learned trial Court had kept them out of its consideration, on score of m ere delay. In
my opinion, it did not appear to be a judicious exercise of judicial power. Rules of procedure are intended to advance and sub- serve the cause of justice, rather than to
obstruct it. Ground of mere delay was insufficient to deny production of documentary
evidence which otherwise appeared to be relevant and free from taint of suspicion. In taking this view, I derived strength from the cases reported as PLD 1956 Lah. 252, PLD 1957 (W.P.) Lah. 803, PLD 1977 AJK 78, PLD 1992 SC 822, 1992 SCMR 1778. Above few cases were merely referred to support structuring of exercise of discretion under Order XIII, Rule 2, Civil P.C. by the Court. Otherwise, there was a long line of
cases to support liberal exercise of jurisdiction under the above rule of the Code.
Exercise of discretion was always regulated by taking cognizance of relevant considerations bearing upon it. Learned trial Court was oblivious of the afore -quoted
considerations. Therefore, its order shutting out documentary evidence on account of mere delay in its production was defective and not tenable. I would, therefore, set it
aside and direct reconsideration of the matter for its decision afresh in accordance with law."
9. Order XIII, Rule 2, C.P.C. confer powers upon the court to allow production of
document at later stage provided the documents are essential for just decision of the case and
also those documents are free from any suspicion of being forged and fabricated. T he court
should receive most liberal construe for advancing the cause of justice. In Muhammad
Afzal's case (PLD 2004 Azad (J&K) 43), it was held that "All rules of procedure are meant
for the purpose of administration of justice." Where prima facie the aut henticity of document
is beyond suspicion then it should be allowed. It is well settled principle that procedural law
should be liberally adhered to because its basic object was to advance the cause of justice and not to defeat the ends of justice.
10. Under Order XIII, Rule 2, C.P.C. the court can permit the parties to produce
document at later stage showing good cause, meaning thereby that the court could not strictly prohibit the parties for production of document at later stage. The simple interpretation of good cause can be that the document ought to be produced was not in possession or no effective decree can be passed. The primary duty of the court is to decide the case justly, fairly and in accordance with law. If it is necessary to meet the ends of justice the court may
allow the parties to produce additional evidence at later stage. Reliance is placed on the case Kohinoor Tobacco Company (Pvt.) Ltd. v. S. M. Idrees Allawala 2013 CLC 1789, wherein it was held:
6. Order XIII, Rule 1, C.P.C., provides that parties or their pleaders shall produce at
the first hearing of the suit all documentary evidence of every description in their
possession or power on which they intend to rely and which has not already been filed
in court and all documents which the court has ordered to be produced. Under sub-
rule (3), it is further provided that on production of documents under this rule, the
court may call upon the parties to admit or deny the documents produced in court and record their admission or as the case ma y be denial. In order to cater the exigency and
to cope with this situation where party fails to produce the documents under rule 1 or under Order VII, Rule 14, C.P.C. a rider has been provided under Order XIII, Rule 2,
C.P.C. and the letter of law lay dow n that no documentary evidence in the possession
or power of any party which should have been but not have been produced in
accordance with requirement of rule, shall be received at any stage of the proceedings
unless good cause is shown to the satisfactio n of the court for non- production thereof
and the court receiving any such evidence shall record the reason for doing so. Mere delay in filing application would not be a reasonable ground or sufficient cause to
disentitle or disallow the person/party to pr oduce the document which would amount
negation of Order XIII, Rule 2, C.P.C., especially designed to remedy such a
situation. Application for permission to produce documents and or additional evidence may be filed at any stage when the genuineness of the d ocuments is beyond
any shadow of doubt and it ought not to be shut out of evidence if produced at late stage.
10. At this juncture I would like to quote a landmark judgment of Hon'ble Supreme
Court in the case of Imtiaz Ahmed v. Ghulam Ali reported in PLD 1963 SC 382 in
which his lordship B.Z. Kaikaus J, as he then was, held that proper place of procedure
in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided un less it be essential to
comply with them on grounds of public policy. The English system of administration of justice on which our own is based, may be to a certain extent technical but we are
not to take from that system it defects. Any system which by gi ving effect to the form
and not to the substance defeats substantive right is defective to that extent. The ideal
must always be a system that gives to every person what is his."
11. The good cause has been defined in DB judgment of this court Shah Muhamma d v.
Habibullah, PLD 2020 Balochistan 5 as:
"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 go od 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. 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 d oubt 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".
12. The record transpires that respondent/plaintiff before Honorable Supreme Court
contended that he made cash payment which was duly incorporated in the ledger prepared by the respondent/plaintiff, but the very ledger was misplaced which contained the signature of petitioner/defendant. The Honorable Supreme Court remanded the matter to the trial court by allowing the parties to produce additional evidence. The Honorable Supreme Court in case Anwar Ahmad v. Mst. Nafis Bando 2005 SCMR 152 held:
"20. As far as non- filing of documents along with plaint is concerned it has never
been considered fatal in view of provisions of Order XIII, rule 2, C.P.C. which
empowers the Court to receive documentary evidence during the trial.----"
The citation relied by the respondent is different. Each case has its own peculiar facts
and circumstances .
In view of above I find no illegality in the impugned order dated 16th December,
2020 of Additional District Judge -III, Quetta, which is accordingly upheld and instant
petition is dismissed with no orders as to costs.
MH/118/Bal. Revision 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.