-Application for producing of additional documentary evidence--Completion of petitioner’s evidence--Dismissal of application-

 PLJ 2021 Lahore 434

Civil Procedure Code, 1908 (V of 1908)--

----S. 115, O.XIII R. 1 & 2--Suit for declaration and permanent injunction--Application for producing of additional documentary evidence--Completion of petitioner’s evidence--Dismissal of application--Gift-deed--Restriction upon Court--Exercising of Powers by Court--Scope of revisional jurisdiction--Challenge to--In terms of Rule 1 parties or their pleaders are obliged at first hearing of suit to produce all documentary evidence of every description in their possession or power on which they intend to rely whereas Rule 2 places a restriction upon Court from receiving any document at any subsequent stage, which does not fulfill requirement of sub-rule (1)--Such restriction is though not absolute but party desirous to produce such document has to show a good cause of its non-production to satisfaction of Court-- petitioner has failed to plead a good cause for the satisfaction of the Court, persuading the Court to exercise its powers under sub-rule (2)--Revisional jurisdiction is always guided by principles enshrined in Section 115 of “CPC”-- Revisional Court can only exercise jurisdiction if some patent illegality or material irregularity appears on surface of record-- Revisional jurisdiction has a very limited scope and unless petitioner(s) establish(es) that judgment(s) or order(s) under assailance suffer(s) with infirmities as hedged in Section 115 of “CPC” he/they could not succeed. As no illegality or material irregularity is pointed out by petitioner in concurrent findings of Courts below, so exercise of revisional jurisdiction is unwarranted--Revision petition dismissed.            [P. 437] A, B & C

Ms. Asma Mushtaq, Advocate for Petitioner.

Syed Ikram Gilani, Advocate for Respondents.

Date of hearing: 10.10.2019.

 PLJ 2021 Lahore 434
[Rawalpindi Bench Rawalpindi]
Present: Mirza Viqas Rauf, J.
RASHEEDA BEGUM--Petitioner
versus
IBRAR BI and 2 others--Respondents
C.R. No. 711 of 2014, decided on 10.10.2019.

Order

Through instant civil revision, the petitioner namely Rasheeda Begum assails the vires of judgment dated 16th May, 2014, whereby the learned Additional District Judge, Rawalpindi, while dismissing her appeal affirmed the order dated 14th May, 2013 passed by the learned Civil Judge Class-I, Rawalpindi.

2. The facts in precision necessary for adjudication of instant petition are that the petitioner instituted a suit for declaration along with permanent injunction challenging the gift deed No. 5769 dated 19th July, 2000 effected in favour of the respondents. The suit was contested by the respondents, who filed their joint written statement. From the divergent pleadings of the parties, necessary issues were framed. During the proceedings, an application was moved by the petitioner seeking permission to produce additional document, which was duly responded by the respondents. The learned trial Court after hearing both the sides dismissed the said application by way of order dated 14th May, 2013. The petitioner, feeling aggrieved from the said order though preferred an appeal before the learned Additional District Judge, Rawalpindi but same was dismissed vide impugned judgment dated 16th May, 2014, hence this petition under Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred as “CPC”).

3. Learned counsel for the petitioner submitted that initially document in question was not available to the petitioner, so the same neither could be relied nor produced before the Court. Added that document in question is necessary for just decision of the case. Learned counsel maintained that learned trial Court has ample power under Order XIII Rule 2 of “CPC” to grant permission for this purpose and there was no legal bar to present document in question in evidence. It is contended that learned trial Court has erred in law while refusing the petitioner to present the agreement in question. Learned counsel further contended that appellate Court has also failed to exercise its lawful jurisdiction and appeal was dismissed by way of impugned judgment without properly adverting to the relevant law.

4. On the other hand, learned counsel for the respondents resisted the petition with hilt.

5. Heard. Record perused.

6. Perusal of record reveals that suit was instituted by the petitioner, while challenging gift deed No. 5769 dated 19th July, 2000 effected in favour of the respondents regarding disputed house on the ground that the same was given by Ali Asghar to the petitioner as dower. Suit was duly contested by the respondents, who filed their written statement and from the divergent pleadings of the parties, necessary issues were framed by the learned trial Court. It is evident from the record that when oral evidence of the petitioner was completed and case was fixed for documentary evidence, she then moved application seeking permission to lead additional evidence in the shape of agreement dated 01st December, 2007 purportedly executed between the petitioner and her husband Ali Asghar (predecessor-in-interest of the respondents), which was dismissed by the learned trial Court by way of order dated 14th May, 2013. The order of learned trial Court was though assailed through appeal but same was also dismissed by way of judgment dated 16th May, 2014.

7.  In order to properly appreciate the matter in issue, it would be advantageous to first have a recourse to Order XIII Rules 1 and 2 of “CPC” which are reproduced below:

“1. Documentary evidence to be produced at first hearing.--(1) The parties or their pleaders shall produce, at the first hearing of the suit, all the 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.

(2) The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

(3) On production of documents under this rule, the Court may call upon the parties to admit or deny the documents produced in the Court and record their admission or, as the case may be denial.

2. 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 produced in accordance with the requirement 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.”

(Underlining is supplied for emphasizes)

It is manifestly clear from the above that in terms of Rule 1 the parties or their pleaders are obliged at the first hearing of the suit to produce all the documentary evidence of every description in their possession or power on which they intend to rely whereas Rule 2 places a restriction upon the Court from receiving any document at any subsequent stage, which does not fulfill the requirement of sub-rule (1). Such restriction is though not absolute but the party desirous to produce such document has to show a good cause of its non-production to the satisfaction of the Court. Simultaneously the Court receiving any such evidence shall then record the reasons for so doing. When application of the petitioner is seen on this perspective, it reveals that she pleaded the following reason:

“2۔ یہ کہ کاغذات ہذا اقرار نامہ (معاہدہ مابین فریقین) اور بیان حلفی بوقت دعویٰ دائری سائلہ کے پاس موجود نہ تھے۔ بعد ازاں گھر کی صفائی کرتے وقت یہ کاغذات سائلہ کو ملے۔”

It is clearly evident from the above that the petitioner has failed to plead a good cause for the satisfaction of the Court, persuading the Court to exercise its powers under sub-rule (2). Since the petitioner did not produce the document in question according to Order XIII Rule 1 of “CPC”, so she was precluded to produce the same at subsequent stage. The Courts below while declining the petitioner to produce such document were well versed with the mandate of Order XIII of “CPC”. The concurrent conclusion of both the Courts below is in consonance with the well settled principles of law.

8. The revisional jurisdiction is always guided by the principles enshrined in Section 115 of “CPC”. The revisional Court can only exercise jurisdiction if some patent illegality or material irregularity appears on the surface of record. The revisional jurisdiction has a very limited scope and unless the petitioner(s) establish(es) that judgment(s) or order(s) under assailance suffer(s) with infirmities as hedged in Section 115 of “CPC” he/they could not succeed. As no illegality or material irregularity is pointed out by the petitioner in the concurrent findings of the Courts below, so exercise of revisional jurisdiction is unwarranted. Consequently this civil revision, being without any merits is dismissed in limine.

(Y.A.)  Petition dismissed