2017 MLD 1369
Documentary evidence, proof of---Production and admission of documents---Objection against admission of a document---Scope---Although production of a document and admission of a document were two different subjects, a document could be produced in evidence which was always subject to admission as required under Art. 78 of the Qanun-e-Shahadat, 1984---Courts were vested with jurisdiction to ascertain genuineness and authenticity of any document in order to arrive at a just and fair conclusion on the touchstone and parameters of Art. 78 of the Qanun-e-Shahadat, 1984 and when a document had been Exhibit ed in evidence without any objection by the opposite party, the same was deemed to be proven in all respects---Objection as to the authenticity of a document was to be taken at an earlier stage and after a document was admitted in evidence, an objection against admission could not be allowed at any subsequent stage۔
2015 MLD 1358
Documentary evidence---Exhibit s, non-marking of---Pre-emptor was aggrieved of judgment and decree passed by Trial Court, whereby suit was dismissed---Validity---Record showed that all receipts were available but the same did not have endorsement with Exhibit numbers and no mark of Exhibit ion was available on the receipts---Such material irregularity was committed by Trial Court, while recording evidence and court while deciding the suit had referred the documents as Exhibit ed ones despite the fact that no mark of Exhibit was available on envelops of registered letters allegedly sent to vendees as well as receipts of post office issued for registered letters---Such defect was fatal, therefore, Trial Court ignoring such defect had decided the case by referring those documents as Exhibit s, which actually did not contain Exhibit mark---High Court set aside judgment and decree passed by Trial Court and remanded the case to Trial Court for decision afresh as valuable rights of parties were involved
2014 YLR 2468
Exhibit ion of document was one thing and its proof was another---Exhibit ion of document did not mean that same stood proved rather the party relying upon such document was supposed to prove the same in accordance with law
PLD 2016 Lahore 383
Production of document---Admission of document in evidence under O. XIII, R. 4, C.P.C., is not binding on parties---Unproved documents could not be regarded as proved merely because the same has been admitted in evidence by court without any objection---Order XIII, R. 4, C.P.C. must be strictly complied with---Document once brought on record and Exhibit ed, even if no objection is taken from other side when the same is Exhibit ed, court is not prevented from adjudicating its nature to ascertain that whether same is valid and not fake۔
2017 CLD 1122
Documentary evidence, proof of---Production and admission of documents---Objection against admission of a document---Scope---Although production of a document and admission of a document were two different subjects, a document could be produced in evidence which was always subject to admission as required under Art. 78 of the Qanun-e-Shahadat, 1984---Courts were vested with jurisdiction to ascertain genuineness and authenticity of any document in order to arrive at a just and fair conclusion on the touchstone and parameters of Art. 78 of the Qanun-e-Shahadat, 1984 and when a document had been Exhibit ed in evidence without any objection by the opposite party, the same was deemed to be proven in all respects---Objection as to the authenticity of a document was to be taken at an earlier stage and after a document was admitted in evidence, an objection against admission could not be allowed at any subsequent stage۔
2016 CLC 1125
"Record"---Definition---Written account of some act, transaction, or instrument, drawn up, under authority of law, by a proper officer, and designed to remain as a memorial or permanent evidence of the matters to which it relates; term 'records' means accounts, correspondence, memorandums, tapes, discs, papers, books and other documents or transcribed information of any type whether expressed in ordinary or machine language; complete record, encompasses clerk's record, record of proceedings and all evidence; Court record proceedings means official collection of all the trial pleadings, Exhibit s, orders and word-for-word testimony that took place during the trial and Judicial record, means precise history of civil or criminal proceedings from commencement to termination.
2009 SCMR 1169
Document which was not placed on record and exhibit ed in evidence was not part of judicial record and thus, its judicial notice could not be taken۔
PLD 2010 SC 604
Written statement---Evidentiary value---Written statement could neither be exhibit ed in evidence without examining person having filed same nor be treated as substantive evidence except where same amounted to admission of plaintiff's plea.
Document not brought on record through witnesses and duly exhibit ed---Validity---Such document could not be taken into consideration by court۔
2011 SCMR 1162
Document having been produced and exhibit ed without any objection, cannot be challenged either in appeal or before any other forum superior in hierarchy
2014 SCMR 630
Document---Admissibility, objection to---Principle---Once any document was exhibit ed without objection from opposite side such document cannot be termed as inadmissible evidence
" Documents available in court file but not exhibited in evidence".
S. 151, O.XIII, Rr.1,2 & 4‑‑‑Documents, production in evidence‑‑Marking of exhibits‑‑‑Object and procedure‑Certain documents were sought by the plaintiffs to be produced in evidence which neither their counsel produced at the time of evidence nor the Trial Court marked them exhibit itself although the same were already available on the file.
Court was not bound to exhibit the documents itself‑‑Counsel for plaintiffs, in the present. case, had not acted in a diligent manner
"No one should suffer by any act of a Court".
S. 151, O.XIII, Rr.1,2 & 4‑‑‑Documents, production in evidence‑‑Marking of exhibits‑‑‑Object and procedure‑Certain documents were sought by the plaintiffs to be produced in evidence which neither their counsel produced at the time of evidence nor the Trial Court marked them exhibit itself although the same were already available on the file.
Contention of the plaintiffs was that it was the duty of the Court to exhibit itself the documents produced by the plaintiffs with their affidavits‑in‑evidence.
Counsel of the plaintiffs was obliged to have got the documents exhibited in evidence while recording evidence.
P L D 2003 Karachi 148
Before Muhammad Moosa K. Leghari, J
Mst. MARIUM HAJI and others‑‑‑Plaintiffs
Versus
Mrs. YASMIN R. MINHAS and others‑‑‑Defendants
Suit No. 1582 of 1997 and Civil Miscellaneous Application No. 115 of 2102, decided on 21st March, 2002.
(a) Act of Court‑‑‑
‑‑‑‑ No one should suffer by any act of a Court.
(b) Civil Procedure Code (V of 1908)‑‑‑
S. 151, O.XIII, Rr.1,2 & 4‑‑‑Documents, production in evidence‑‑Marking of exhibits‑‑‑Object and procedure‑Certain documents were sought by the plaintiffs to be produced in evidence which neither their counsel produced at the time of evidence nor the Trial Court marked them exhibit itself although the same were already available on the file.
Contention of the plaintiffs was that it was the duty of the Court to exhibit itself the documents produced by the plaintiffs with their affidavits‑in‑evidence ‑‑‑Validity.
Counsel of the plaintiffs was obliged to have got the documents exhibited in evidence while recording evidence.
Merely because the documents found mention in the affidavits‑in‑evidence, such documents could not be deemed to have been received in evidence.
Plaintiffs could not be absolved of responsibility to get documents properly exhibited, as the same would provide an opportunity to the other side to raise objection with regard to the admissibility and genuineness or otherwise of the documents sought to be tendered in evidence‑.
Court was not bound to exhibit the documents itself‑‑Counsel for plaintiffs, in the present. case, had not acted in a diligent manner.
High Court did not allow to produce the documents in evidence and the contention of the plaintiffs was baseless, contrary to the facts, perverse and misconceived.
Application was dismissed in circumstances
Black's Law Dictionary; 1992 SCMR 1772; PLD.1990 SC 661 and 2001 YLR 2350 ref.
(c) Civil Procedure Code (V of 1908)‑‑‑
O. XVIII, R.18‑‑‑Site inspection‑‑‑Contents of report of official assignee whether part of judicial record‑‑‑Dispute was with regard to the stage of construction carried on the spot and to ascertain the same, the‑ Trial Court appointed Official Assignee to inspect the site.
Official Assignee, on the direction of the Trial Court engaged a professional architect for the specific purpose.
Reference submitted by the Official Assignee in the 'Trial Court included report of the architect.
Plea raised by the party was that the report of architect filed with the reference of the Official Assignee was a piece of evidence-‑Validity.
Such report of architect submitted along with the reference did neither form part of any judicial proceedings nor the same was carried out for the purpose of resolving controversy in the main suit‑‑Assignee's reference having come for consideration by the Trial Court and an issue to that effect was framed, the purpose of carrying out the inspection was achieved‑‑‑Plea raised by the party was repelled in circumstances.
(d) Civil Procedure Code (V of 1908)‑‑‑
O. XIII, Rr.1 & 2‑‑‑Evidence ‑‑‑Additional evidence, production of‑‑Filling in lacunas in the case of the party intending to produce additional evidence‑‑Validity.
By way of producing expert's report as additional evidence, the party intended to fill in the gap in the case which could not be permitted as it would amount to allowing a party to derive benefit out of its own follies.
Additional evidence was not allowed in circumstances.
(e) Civil Procedure Code (V of 1908)‑‑‑
O. XVIII, R.18‑‑‑Inspection of site by Court‑‑‑Object and scope‑‑‑Power of inspection of property is discretionary and in peculiar circumstances the inspection of location may be necessary and helpful in deciding a case, but it should not be substituted as an evidence, which otherwise is required to be produced by a party.
(f) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
Art. 164‑‑‑Evidence based upon modern techniques or devices‑‑Production of photographs in evidence.
Procedure‑Photographs may be admissible in evidence, subject to proof through witness that the prints were taken from the negatives were untouched.
Technology has so immensely advanced, that the photographs or even video tapes could be manipulated and maneuvered.
Advancement in the technology besides being advantageous, had also caused adverse effect on the society.
Commission of cyber crime was not imaginable three decades age.
Unless it was proved that the photographs were not manipulated, these could not be allowed to be produced in evidence.
(1965) 2 All ELR 464 ref.
(g) Practice and procedure‑‑‑
‑‑‑‑ Plaintiff has to prove his case by leading independent evidence.
(h) Civil Procedure Code (V of 1908)‑‑
S. 151‑‑‑Inherent powers of High Court.
Scope‑‑‑Exercise of inherent powers available to High Court under S.151, C.P.C. should not affect the substantive rights of the party nor should defeat general principles of law.
Such powers cannot be exercised to condone gross negligence on the part of the parties.
Ms. Rizwana Ismail for Plaintiffs.
Syed Sharifuddin Pirzada, alongwith Muneer A. Malik for Defendants Nos. 1 and 8.
Raja Sikandar Khan Yasir for Defendant No.7
ORDER
C.M.A. No. 1115 of 2002
This is an application under section 151, C.P.C, moved on behalf of the plaintiffs praying therein that the documents Annexures ' 1' to '6' and Annexures 'A' to 'E' as attached with the application be exhibited or in the alternate should be taken on record as part of the evidence in the. above matter.
1. The facts giving rise to filing of this application as narrated therein are that on 12‑4‑2001 documents Annexures 1' to '6' were filed before the Commissioner for recording of evidence alongwith list of documents and witnesses. Subsequently affidavit‑in‑evidence was filed by plaintiffs wherein also the said documents were referred to. It is stated in the application that on 3‑8‑2001 defendants' counsel filed interrogatories'(Annexure Z/a) and on 6‑8‑2001 plaintiffs' counsel filed reply. (Annexure Z/b) to the same. As stated in the application plaintiffs' counsel presumed that the documents were taken on record as part of the evidence but it was discovered by her at the later stage that the aforesaid documents were not taken on record.
As stated in the application second set of documents Annexures ' A' to 'E' were undertaken to be supplied by the defendant witness during his cross‑examination on 2‑10‑2001 and subsequently were handed over by the defendant's counsel to the plaintiffs' counsel. It was presumed by the plaintiffs' counsel that the, said documents were also taken as part of the evidence, however, at later stage it was discovered by her that those documents were not taken on record.
2. This application is supported by affidavit of Ms. Rizwana Ismail, learned counsel appearing for plaintiffs.
3. Counter‑affidavit to the "said application has been filed by Mrs. Yasmin R. Minhas, defendant No. 1 in the case. It is averred on oath that it was specifically stated by the counsel for the plaintiffs that further evidence will be strictly confined to the two additional issues, hence by order dated 28‑3‑2001 plaintiffs were permitted to lead further evidence on two additional issues framed on the said date, which were as follows:
(1) Whether the construction and/or running of the school on the impugned plot has violated of vested rights of the plaintiffs?
(2) Whether the construction and/or running of the school on the impugned plot create a nuisance to the Plaintiffs ?
It is stated in the counter‑affidavit that the documents attached as Annexures ' A' to ' E' . to the application were produced by the defendant No. 8 not on his own but pursuant to a notice served by the plaintiffs' counsel under the provisions of Order 12, rule 8, C.P.C. It yeas stated that since the plaintiffs witness Aziz Jamal was not the author of remaining documents thus an objection was raised that the said documents could not be produced through him. It was further stated in the counter affidavit that copies of these documents were neither filed with the affidavit in evidence filed before the Commissioner nor copy thereof was supplied to the counsel for the defendants. Though the documents were filed on 12‑4‑2001 in the office of High Court together with list of documents, but were never exhibited while recording evidence before the Commissioner. It was further stated that the application was just another tactics on the part of the plaintiffs to delay adjudication of the case on merits.
4. Affidavit in rejoinder to the counter‑affidavit was filed on behalf of the plaintiffs which was sworn by Ms. Rizwana Ismail, learned counsel for the plaintiffs whereby the contents of counter‑affidavit were denied.
5. I have heard Ms.Rizwana Ismail, learned counsel appearing on behalf of the plaintiffs. Mr. Muneer A.Malik, Advocate, advanced arguments on behalf of defendants Nos. 1 and 8. Counsel for rest of the defendants adopted the arguments rendered by Mr.Muneer A. Malik, Advocate.
6. In support of this application learned counsel for plaintiffs contended that certain documents were annexed with the plaint but could not be exhibited while recording evidence before the Commissioner. It was vehemently argued that the inadvertence was on the part of the Commissioner and could not be attributed to the plaintiffs. Learned counsel pressed into service a well‑known maxim that no one should suffer on account of any fault on the part of Court. It was further argued that the documents said to be exhibited in evidence were important for judicial adjudication of the controversy. It was next 'argued that certain documents, sought to be exhibited, did form part of the judicial record and that this Court was not only competent, but duty bound to pass orders for exhibiting those documents which were left to be exhibited. Learned counsel for the plaintiffs sought support from (i) definition of 'Judicial Record' as contained in Black's Law Dictionary; and (ii) Articles 19 and 76 of Qanun‑e‑Shahadat Order, 1984. Further to support her contentions she placed. reliance on (i) 1965 All England Law Reporter; Volume 11, page 464 (relevant page 469), (ii) 1992 SCMR 1772, (iii) PLD 1990 SC 661, and (iv) a Single Bench order of Lahore High Court, reported in 2001 YLR 2350.
7. Conversely, Mr. Muneer A. Malik, learned counsel for defendant No.8 at the very outset submitted that the application was tainted with malice as object of the plaintiffs was to protract the proceedings. It was specifically alleged that this was third attempt made by the plaintiffs to re‑open the evidence in the case. On merits it was contended that ‑it was duly of the plaintiffs to have produced and exhibited the documents in evidence but the plaintiffs failed to get it done. It was argued that the plaintiffs were making attempts to get expert's report and sketch plain produced and exhibited on record without the author of report being tendered in evidence. He argued that said report did not form part of judicial record. Learned counsel vehemently opposed the exhibition of photographs on the ground that the matter was to be decided on the basis of evidence and not on the basis of photographs, which were sought to be produced without ascertaining their correctness. This was bound to prejudice the case of the defendants.
8. I have given due consideration to the arguments advanced at the bar, and perused the material placed on the record. I have also examined the documents sought to be produced on record. Besides, I have had the advantage of going through the case‑law' relied upon by learned counsel for plaintiffs.
9. There can hardly be any dispute with regard to the proposition that no one should suffer by any act of a Court. However, as apparent from the A record and facts of the case no prejudice was caused to the plaintiffs on account of any act of learned Commissioner as alleged. It was duty of the plaintiffs' counsel to have got the documents exhibited in evidence while recording evidence. Merely because the documents find mention in the affidavit‑in‑evidence, those could not be deemed to have been received in evidence. A party cannot be absolved of responsibility to get the documents e properly exhibited. This provides an opportunity to the other side to raise objection with regard to the admissibility and genuineness or otherwise of the documents sought to be tendered in evidence. Admittedly these documents were not produced with affidavit‑in‑evidence resultantly, the other side had no occasion/chance to challenge the admissibility' or veracity of such documents. The contents of the application itself reveal that it was presumed' by the counsel that the documents were exhibited, but subsequently it was discovered to be otherwise. This fact itself was adequate enough to show that it was the counsel who acted in a careless manner, she did not take her cause vigilantly and diligently, instead, left the matter on mere 'presumptions' but such presumptions proved to be factually incorrect. The contention raised by learned counsel for plaintiffs, to the effect that it was an act of the Court, is totally baseless, contrary to the facts, perverse and misconceived as such the same is repelled.
10. The inspection and he survey report submitted by an Architect filed alongwith the Official Assignee's reference at no stage of the case, was made part of the record. Thus it could not, by any stretch of imagination be termed to be 'judicial record' as contended by the learned counsel‑for the plaintiffs. It will be noted that the Official Assignee in this case was directed to inspect the site in pursuance of an application under Order 18, rule 18, C.P.C., moved by the plaintiffs for the purpose of giving report regarding the stage of the construction of disputed plot. The Official Assignee was also allowed to engage any professional. i.e. Architect, Engineer etc. It appears that in pursuance of the order, Official Assignee engaged a professional Architect and submitted his report dated 12‑4‑1999 which relates to a particular point, and is confined to a specific purpose. Such report of Architect submitted alongwith Official Assignee's reference did neither form part of any judicial proceedings nor the same was carried out for the purpose of resolving controversy in the main suit. The perusal of the record shows that the Official Assignee's reference came to be considered by this Court; and vide order dated 2‑9‑1999 an issue to that effect was. framed. Thus the purpose of carrying out the inspection was achieved. The contentions raised by learned counsel for plaintiffs in this regard is ill‑founded.
It appears that though an issue was framed by the Court but the plaintiffs thought it fit not to lead any evidence or for that matter took steps for production report of the Architect. Since the Architect who was author of the survey report was not tendered in evidence and the other side had no opportunity to cross‑examine him, allowing of this report to be produced on record at this stage when the evidence has been concluded was bound to prejudice the case of defendants. There are sufficient reasons to believe that by way of producing Expert's report plaintiffs intend to fill in the gap in the case which could not be permitted as it would amount to allowing a party to derive benefit out of its own follies.
It may not be out of place to mention that the power of inspection of the property was discretionary and in peculiar circumstances the inspection of location may be necessary and helpful in deciding a case, but it is well‑settled that it should not be substituted as an evidence, which otherwise is required to be produced by a party. For these reasons I do not see any justification for allowing the report of the Architect to be exhibited.
11. In so far as the photographs are concerned, Ms. Rizwana Ismail, learned counsel for plaintiffs was specifically asked as to how photographs could be exhibited and made part of evidence as the defendant did not have an opportunity or there was no occasion for him to cross‑examine the witness with regard to the genuineness of the photographs. She was not able to give any explanation worth consideration. Even no explanation was forthcoming as to how the case of the plaintiffs, could be proved on the basis of photographs sought to be produced in evidence. Learned counsel for plaintiffs has specifically relied upon the England Case to argue that the photographs could be admissible‑in‑evidence. The photographs may have been admissible in evidence, subject, however, it was proved through I witness that the prints are taken from the negatives that are untouched as has been observed in the very authority relied upon by the learned counsel for plaintiffs, the tact which cannot be lost sight of is that this authority relates to the year 1965, and, now technology has so immensely advanced, that the photographs or even Video tapes can be manipulated and manoeuvred. Advancement in the technology besides being advantageous, has also caused adverse effect on the society. Commission of cyber crime was not imaginable three decades before. In such circumstances, unless it is proved that the photographs are not manipulated, these could not be allowed to be produced in evidence.
12. The Supreme Court authority reported in 1992 SCMR 1778, relied upon by the learned counsel for plaintiffs is to the effect that where one or the other party had failed to request for proper examination of the disputed documents/signatures the Court had ample power to do the needful so as to advance justice. In PLD 1990 SC 661, it has been held by the apex Court that Trial Court was not denuded of power to summon all the necessary Revenue Record and also to summon the Patwari so as to supply omissions from both sides in exercise of powers under Order XLI, rule 27, C. P. C.
13. There is no cavil to the above legal propositions, but with utmost humility, I am constrained to say that the above authorities are not attracted and are hardly relevant in the facts and circumstances of the case in hand. I have also earnestly considered the contention raised by learned counsel for the plaintiffs regarding applicability of Articles 19 and 76 of Qanun‑e-Shahadat Order, 1984, but found the same to be devoid of merit. It is settled principle of law that the plaintiff has to prove his case by leading independent evidence.
14. The documents referred in the application as Annexures ' A' to ' E' were supplied to the learned counsel for plaintiffs in pursuance of notice served by her to the defendant. Copy of the said notice has been annexed kith the counter‑affidavit and this assertion has not been denied. In the counter‑affidavit the order dated 9‑10‑2001 of this Court has been reproduced wherein it was observed as under: ‑‑
"Learned counsel for defendants Nos.1 and 8 has filed certain documents alongwith a statement in pursuance of the notice under Order 12, rule 8, C.P.C. The documents are taken on record, copy whereof has been supplied to the learned counsel for plaintiff who intends to file an application. She may do so. Adjourned to 18‑10‑2001." (Underlined by me)."
It is obviously clear from the above order that the plaintiffs made a request for tiling proper application, but the same was never filed. The cumulative effect which can be deduced from the above facts is that the learned counsel for plaintiffs has note acted in a diligent manner. In such circumstances it will be extremely unfair arid unjust to allow the production of such documents in evidence.
15. It is well‑settled that the exercise of inherent powers available to this Court under section 151, C.P.C, should not affect the substantive rights of the party or to defeat general principles of law. Such powers could not be exercised to condone gross negligence on the part of the parties.
16. In the circumstances, the utmost relief which could be granted to the plaintiffs in the interest of ,justice is that instant application is allowed to the extent that the following documents shall be exhibited in evidence:
(i) Copy of the plaint.
(ii) Copy of application under Order 26, rule 9, C.P.C.
(iii) Copy of counter‑affidavit to C. M.A. No. 10723 of 1998.
The prayer with regard to remaining documents for taking them on record and producing the same in evidence is rejected as being without merit.
2. The matter is already fixed for arguments on 28‑3‑2002 at 11‑00 a.m.
Q.M.H./M‑429/K
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