Permission to produce documents under order 13 rule 2

PLJ 2013 Karachi 212

Present: Muhammad Ali Mazhar, J.

KOHINOOR TOBACCO COMPANY (PVT.) LTD.--Plaintiff

versus

S.M. IDREES ALLAWALA--Defendant

Suit No. 142 of 1996, CMA No. 1690 of 2013, decided on 2.5.2013.

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

----S. 151 & O. XIII, R. 2--Delivery of title deeds--Application for permission to produce documents--Question of--Whether a good cause or sufficient cause is made--No hard and fast rule but matter is left open to discretion of Court to decide on sound judicial principles depending upon facts and circumstances of each case--Where party fails to produce documents under Order VII, Rule 14, CPC a rider had been provided under Order 13 Rule 2, CPC that no documentary evidence in possession or power of any party which would had been but not had been produced with requirement of rule, shall be received at any stage of proceedings unless good cause is shown to satisfaction of Court for non-production--Mere delay in filing application would not be a reasonable ground or sufficient cause to disentitle or disallow to produce document which would amount negation of Order 13, Rule 2, CPC--Application for permission to produce documents or additional evidence might be filed at any stage when genuineness of documents is beyond any shadow of doubt and it ought not to be shut out of evidence if produced at late stage--Application was allowed.      [Pp. 215 & 216] A & B

Mr. Muhammad Haseeb Jamali, Advocate for Plaintiff.

Mr. Adnan Choudhry, Advocate for Defendant.

Date of hearing: 2.4.2013.

Order

This is a suit for Declaration, Injunction and Delivery of Title Deeds. Matter is pending at the stage of plaintiffs evidence. The plaintiff has brought an application under Order XIII Rule 2, CPC read with Section 151, C.P.C., for permission to produce documents mentioned at Sr.No. 1 to 28 in the application.

2.  The learned counsel for the plaintiff in support of this application argued that production of the documents mentioned in the application will pave the way to decide the bone of contention between the parties and will not in any way prejudice case of the defendant. So far as explanation for non-producing the documents earlier is concerned, the learned counsel argued that the documents sought to be produced were the part of very old record and the same were mixed up with other documents and papers. The plaintiff recently retrieved the past record which includes the documents mentioned in the application. It was further averred that all these documents are quite relevant to resolve the controversy and will not cause any harm to the other side as still the evidence of the plaintiff is continuing and the plaintiffs witness has not come into witness box except two official witnesses who were summoned to appear and produce official record. In support of his-contention, the learned counsel for the plaintiff referred the following case law:--

1.         2005 CLC Karachi 1305 (M/s.Trading Corporation of Pakistan v. M/s.Rahat & Co. The learned Single Judge of this Court held that the rules and procedure are intended to advance justice rather than to obstruct it and objection in regard to delay could hardly be a ground to deny a party to produce documents. The object of Order XIII Rule 2, C.P.C., is to exclude forged documents and expedite trial but it is never intended to apply this provision to deny a party to produce genuine documents which have the effect of resolving controversy between the parties on the ground that such an application has been made at a belated stage.

2.         PLD 1956 Lahore 252 (The Lahore Improvement Trust v. M/s.Khuda Baksh-Meraj Din). It was held that the only reasonable construction of the words "unless good cause is shown for the non-production thereof" occurring in Rule 2 of Order XIII, C.P.C., is to construe them as meaning "unless good cause is shown for reception in evidence in spite of such non-production". The exercise of discretion is governed in each case by the particular circumstances of that case. Statutes are to be interpreted with due regard to their objects. Object of Order XIII Rule 2 is to exclude forged documents and to expedite the trial and not to exclude genuine documents. If there be no doubt as to authenticity of a document and if at the same time its admission were not in any way to delay the trial of a suit, words of Rule 2 should not be allowed to bar its production."

3.         PLD 1981 Karachi 255 (United Bank Ltd. v. Shabbir Ahmed & another). The Court has discretion to receive or reject documents not listed as required by Order 7 Rule 14(2) or filed late and this decision is taken in each case in the light of its particular facts and circumstances. While exercising its judicial discretion to receive or reject the documents, the Court will liberally construe the procedural provision in favour of reception of documents rather than their rejection. The object is to exclude the documents which are apparently suspicious, forged or fabricated and to expedite the trial.

4.         PLD 1981 Karachi 596 (Shabbir Ahmed Abbasi v. United Bank Ltd.). Documents not produced earlier for the reason of being not traceable and such averment not challenged. The documents admitted in the interest of justice in exercise of judicial discretion. Such order, however, not to be made as a matter of course but on sound judicial discretion.

3.  The learned counsel for the defendant argued that issues were settled on 02.04.2001 and list of witnesses was filed by the plaintiff on 13.12.2003. Affidavit-in-evidence of the plaintiffs witness was filed on 28.05.2004. Learned counsel argued that present application has been filed to delay the proceedings and to avoid evidence. He further argued that earlier also the plaintiff moved similar application for producing additional documents which was allowed by consent and another application moved for summing the documents which was also allowed. Learned counsel further argued that two official witnesses Assistant District Officer, CDGK and DDO, Korangi, Karachi, have been examined by the plaintiff and official witnesses produced at least 97 documents. Learned counsel submits that plaintiff is trying to improve the case that is why this application has been filed to set up a plea that plot was applied by Eastern Tobacco, a partnership firm which was converted into private limited company. It was further averred that the plaintiff has failed to disclose any good cause for non-production of documents in question earlier; hence the application is liable to be dismissed. In support of his arguments, learned counsel referred to the following case law:--

1.         1990 SCMR 964 (Muhammad Umair Mirza v. Waris Iqbal). No satisfactory explanation was given by the defendant as to why he did not produce the documents at the first hearing of suit. The trial Court's findings that introduction of the documents at the stage of defendant's evidence would prejudice the case of the plaintiff. The trial Court has thus not acted arbitrarily in circumstances.

2.         PLD 2003 Supreme Court 849 (Sher Baz Khan v. Mst, Malkani Sahibzadi Tiwana). Party requesting for production of additional evidence had no satisfactorily answer as to why documents to be produced as additional evidence were not relied under Order VII, Rule 14, C.P.C., as every party in a suit was required to mention the documentary evidence which it would like to produce in evidence in support of its case so that the adverse party had sufficient notice. Unsuccessful party in a suit was not to be granted opportunity to fill up the weaker part of his case by producing additional evidence to the prejudice of other party.

4.  Heard the arguments. The phrase "good cause" means adequate, sound and genuine reason and it depends upon the facts and circumstances of individual case as there is no set formula or criterion to determine as to what constitutes a good cause. Whether a good cause or sufficient cause is made out or not? It depends upon the facts of eachcase, 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 being a general provision applicable to both i.e., the plaintiff as well as defendant and makes available to both the benefit of the provision liberally. The Court may in its discretion admit the documents at subsequent stage of the proceedings to dispense with justice with the sole aim and objective that the function of the Court is to do substantial justice and decide the rights on merits rather than technicalities.

5.  Here I would further like to observe that rational behind Order XIII, Rule 2, C.P.C., is to prevent the fraud and not penalize the parties for non-production of the documents and in this regard there is no hard and fast rule but matter is left open to the discretion of the Court to decide on sound judicial principles depending upon the facts and circumstances of each case. If there be no doubt as to authenticity of documents then the application ought not to be discarded lightly as rules and procedure are intended to advance cause of justice rather than to obstruct it.

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 may 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 CPC, a rider has been provided under Order XIII  Rule  2,  C.P.C. and  the letter of law lay down 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, satisfaction 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 produce 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 documents is beyond any shadow of doubt and it ought not to be shut out of evidence if produced at late stage.

7.  I have carefully examined the documents attached with the application. Let me first clarify that learned counsel for the defendant neither argued nor in the counter affidavit a single word has been uttered to dispute the geniuses and/or authenticity of the documents. The crux of arguments of learned counsel for the defendant is that earlier also similar application was allowed by consent and now the purpose of moving this application is to counter 97 documents produced by official witnesses. In addition thereto it was further averred that the plaintiff is delaying the proceedings and avoiding to come into the witness box. However, the explanation offered by the plaintiff for not producing the documents earlier has not been refuted by the defendant except an argument that no good cause was shown.

8.  I have also gone through the issues settled by this Court and Issue No. 2 pertains to allotment order issued by KDA to Eastern Tobacco Company proprietor Kohinoor Tobacco Company Private Limited and Issue No. 3 is related to the possession letter allegedly issued by KDA to same Eastern Tobacco Company Proprietor Kohinoor Tobacco Company Private Limited. In Paragraph-1 of the plaint, the plaintiff stated that in 1996 the persons named in Paragraph resolved to launch a Cigarette Manufacturing Venture in the name of Eastern Tobacco Company at Karachi in partnership which was later converted into a private limited company. In the written statement though the defendant denied the contents of Paragraph-1 but he himself submitted that names of persons as appearing in the application form submitted to the department of Investment Promotion and Supply, Government of Pakistan for the purpose of seeking permission to set up a company in the name of Eastern Tobacco Company which would own and operate Cigarette Manufacturing Plant in Karachi and since project was never set up, therefore a private limited company in the name of Kohinoor Tobacco Company Private Limited was set up in the year 1966 with the object of setting up a Cigarette Plant in Dhaka. It is further stated that defendant alone remained as the sole Proprietor of the land allotted in the name of Eastern Tobacco Company. The burning question is roaming around the allotment of land and documents sought to be produced by the plaintiff at this stage more or less related to the same controversy between the parties. The plaintiff has also offered explanation that documents attached with the application could not be produced at the time of filing documents as the same were mixed up with other paper and retrieved later.

9.  The case law cited by learned counsel for the plaintiff have direct nexus to the point in issue and in all such precedents the guiding principle expounded is that provision of Order XIII Rule 2 should be construed liberally and the main purpose and object of the rule is to exclude forged documents and to expedite the trial and not to exclude the genuine documents. While precedents cited by learned counsel for the defendant are distinguishable. In the case of Sher Baz Khan supra, the application was not filed in the trial Court but it was filed in the appeal for permission to produce documents mentioned therein as additional evidence while in the case in hand, evidence of the plaintiff is still continuing and he has to be cross-examined and if documents are brought on record, ample opportunity will be available to the counsel for the defendant to cross-examine the plaintiff at length. In the case of Umair Mirza supra, it was held that no satisfactory explanation given by the petitioner as to why he did not produce documents at the first date of hearing of the suit, even otherwise in the case supra, evidence of the plaintiff was concluded and matter was fixed for recording evidence of the defendant, on that date, the defendant attempted to introduce 80 documents in evidence. Again I would like to observe that in the case in hand, plaintiffs evidence has not been completed and if documents are brought on record, the plaintiff may be controverted and confronted with each and every document during the cross-examination of its witness.

10.  At this juncture I would like to quote a land mark judgment of Hon'ble Supreme Court in the case of Imtiaz Ahmed v. Ghulam Ali reported in 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 unless 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 its defects. Any system which by giving 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.  As a result of above discussion, the application is allowed.

(R.A.)  Application allowed