Saturday, 4 October 2014

Production of Additional Evidence to reach a conclusion

PLJ 2013 Lahore 671
Present: Mehmood Maqbool Bajwa, J.
RAO NISAR AHMAD and 2 others--Petitioners
versus
MUHAMMAD SAEED RANA and 5 others--Respondents
C.R. No. 690 of 2012, decided on 4.6.2013.
Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R. 1--Material proposition--Question legality and validity of order--Production of additional evidence--When material proposition of law or fact is affirmed by one party or denied by other--Proposition of law must allege in order to show a right to sue or defendant must allege in order to substantiate defence--Validity--There is no dispute with settled proposition of law that each material proposition is affirmed by one party and denied by other, shall form subject of distinct issue.           [P. 674] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R. 1 & O. XLI, R. 27--Production of additional evidence--Order dismissing application u/Order XIV, Rule 1, CPC does not suffer from any jurisdictional error or defect--By way of application u/O. XLI, Rule 27, CPC, petitioner wanted to produce copy of nikah nama as well as certified copy of challan forms--Though documents pointed out by respondent were in possession of petitioners but non-production of same earlier by itself was not sufficient to dismiss application--Delay in making such type of application would not be sufficient to dismiss application unless and until intention is showing malice on part of person making such application--Documents sought to be produced were required to be allowed by Appellate Court which undeniably will help the Court to reach just conclusion--While accepting revision petition, application u/Order XIV, Rule 1, CPC was dismissed but accepting application u/Order XLI, Rule, 27, CPC.         [Pp. 674 & 675] B, E & F
Administration of Justice--
----Genuineness of copy of nikah-nama and certified copy of challan form--Production of additional evidence--Mere delay in submission of application was not sufficient to decline application--There is little cavil with proposition of law that concept of bar in filling up gaps and lacunas in civil administration of justice is no more recognized.     [P. 675] C
1992 SCMR 1778, ref.
Procedural Technicalities--
----Law favors adjudication on merits and party is not required to be trapped by procedural technicalities.    [P. 675] D
2012 SCMR 1258, ref.
Mr. Mushtaq Ahmad Dhoon, Advocate for Petitioners.
M/s Rana Muhammad Mehtab and Rashid Saeed Rana, Advocates for Respondent No. 1.
Date of hearing: 4.6.2013.
Order
Question the legality and validity of order dated 27.01.2012 recorded by learned Additional District Judge, whereby the learned appellate Court in an appeal preferred by petitioners questioning the legality and validity of judgment and decree drawn up on 10.05.2010, three applications made by petitioners were statedly disposed of.
2.  Learned counsel for the petitioners contended that two applications available at pages 81 and 84 of the paper-book were submitted at the instance of petitioners for production of additional evidence. Submitted that first application was made on 20.05.2010 in order to produce the witnesses including Barkat Ali, LambardarRisaldar Muhammad Sharif, joint Sub-Registrar and Revenue Officer. Argued, that second application was made on 23.08.2010 whereby the documents referred to in para (3) of the application were sought to be produced. Pointed out that there was third application made at the instance of petitioners under Order XIV, Rule 1 of The Code of Civil Procedure, 1908, available at page 86 of the paper-book. Contended that all the three applications were declined by learned appellate Court on erroneous presumption.
Continuing the arguments on the application under Order XIV, Rule 1 of The Code of Civil Procedure, 1908, it was maintained that two additional issues were proposed by them which were necessary in order to resolve the controversy but the same were not cast. Non-framing of issues in the opinion of learned counsel for the petitioners is failure of the appellate Court to exercise jurisdiction vested in it.
3.  Submitting arguments on the applications under Order XLI, Rule 27 of The Code of Civil Procedure, 1908, it was submitted that the documents and witnesses sought to be produced were necessary for just decision of the case and as such learned appellate Court should have allowed the applications. Help was sought from the dictum laid down in "Gulam Zohra and 8 others v. Nazar Hussain through Legal Heirs" (2007 SCMR 1117), "Zar Wali Shah v. Yousaf Ali Shah and 9 others" (1992 SCMR 1778) and "Syed Muhammad Hassan Shah and others v. MstBinat-e-Fatima & another (PLJ 2008 SC 813). Further submitted that the learned Additional District Judge while non-suiting the petitioners with reference to the relief sought for in the applications for additional evidence was influenced by the fact that the applications were made at belated stage which is alien to the yardstick contained in the provisions under which application was made.
4. On the other hand, learned counsel for Respondent No. 1 while defending the impugned order maintained that documents as well as witnesses sought to be produced at the instance of petitioners were well within their knowledge and as such in the absence of any justified cause not to produce the same within time disentitle the petitioners to produce the same. Submitted that conscious attempt was made by the petitioners to fill in gaps and lacunas and as such applications were rightly dismissed. Help has been sought from the dictum laid down in "Faiz Muhammad through Legal Representatives and others v. Mst.Khurshid Bibi" (PLD 2009 Lahore 41) and "Sui Nothern Gas Pipelines Limited through Deputy Chief Law Officer v. Habib-ur-Rehman Hashmi" (2007 YLR 66).
Continuing the arguments learned counsel for Respondent No. 1 maintained that Barkat Ali, Lambardar, identifier of the documents (Ex.D1 to Ex.D4) has expired and as such question of his production and appearance does not arise at all.
5.  Record of the appellate Court suggests that one application under Order XLI, Rule 27 read with Section 151 of The Code of Civil Procedure, 1908, was made at the instance of petitioners on 13.08.2010 for production of documents referred to in para (3) of the application which was decided besides disposal of the application under Order XIV, Rule 1 of The Code of Civil Procedure, 1908. However, perusal of the order clearly suggests that the application made by the petitioners for production of additional evidence in order to produce witnesses made on 20.05.2010 was not disposed of.
Though it is the case of learned counsel for Respondent No. 1 that arguments were heard by the appellate Court on all the applications and were decided but the factual position is otherwise which was not disputed by the learned counsel for Respondent No. 1 after going through the order impugned.
In view of the matter, this Court shall not discuss the respective contentions of the parties with reference to the application for additional evidence made on 20.05.2010 which shall be deemed to be pending before the appellate Court to be decided in accordance with law.
6.  By submitting application under Order XIV, Rule 1 of The Code of Civil Procedure, 1908, the petitioners prayed for casting of two issues proposed in para (2) of the application. Learned counsel for the petitioners on query by this Court maintained that earlier, proposed issues were not cast though are necessary for settling the controversy between the parties because legality and validity of registered will deed dated 26.04.1958 shall enable the Court to reach a just conclusion. Further submitted that status of MstKalsoom being daughter of Abdul Ghafoor @ Addu Zikarya Khan was also to be settled but could not be decided as no issue was framed.
7.  According to Order XIV, Rule 1 of The Code of Civil Procedure, 1908, issue arises when material proposition of law or fact is affirmed by one party or denied by the other. Material proposition has been defined as that proposition of law or fact which the plaintiff must allege in order to show a right to sue or the defendant must allege in order to substantiate his defence. There is no dispute with the settled proposition of law that each material proposition, if affirmed by one party and denied by the other, shall form subject of distinct issue. Perusal of the pleadings of the parties does not suggest that registered will-deed dated 26.04.1958 was subject to challenge at the instance of respondents, therefore, by no stretch of imagination it can be said to be material proposition within the meaning of Order XIV, Rule 1 of The Code of Civil Procedure, 1908 and as such proposed Issue No. 1 is not reflected from the controversy between the parties.
Though the status of MstKalsoom being daughter of Abdul Ghafoor @ Addu and Zikarya Khan was required to be decided but keeping in view Issues No. 1 and 2 though not properly framed, controversy can be conveniently decided by the Court.
8.  In view of the matter, impugned order dismissing the application under Order XIV, Rule 1 of The Code of Civil Procedure, 1908, does not suffer from any jurisdictional error or defect.
9.  By way of application under Order XLI, Rule 27 of The Code of Civil Procedure, 1908, made on 13.08.2010 the petitioners wanted to produce the copy of Nikah Nama as well as certified copies of challanforms referred to in para (3) of the application. Though the documents as pointed out by learned counsel for Respondent No. 1 were in possession  of  the  petitioners  but non-production of the same earlier by itself was not sufficient to dismiss the application. Suffice it to say that delay in making such type of application would not be sufficient to dismiss application unless and until intention is showing malice on the part of the person  making such application.
Genuineness of copy of Nikah-Nama and certified copies of challan forms cannot be disputed and as such mere delay in submission of application was not sufficient to decline the application. There is little cavil with the proposition of law that concept of bar in filling up gaps and lacunas in civil administration of justice is no more recognized as held in "Zar Wali Shah v. Yousaf Ali Shah and 9 others" (1992 SCMR 1778).
10.  Even otherwise, law favours adjudication on merits and party is not required to be trapped by procedural technicalities. Reference may be made to "Syed Sharif-ul-Hassan through LRs. v. Hafiz MuhammadAmin and others" (2012 SCMR 1258).
11.  Documents sought to be produced by way of application under discussion were not produced before the trial Court and application was also not made before the said Court and as such though there was no improper refusal on the part of the trial Court to admit the documents but the fact by itself would not be sufficient to dismiss the application in view of the expression "substantial cause" used in the said provision of law. In view of the matter, there can be no two opinions that the documents sought to be produced were required to be allowed by the appellate Court which undeniably will help the Court to reach a just conclusion.
12.  Pursuant to above discussion, the application under Order XLI, Rule 27 of The Code of Civil Procedure, 1908, made on 13.08.2010 is to be accepted.
13.  Epitome of above discussion is that while accepting the revision petition partly, application under Order XIV, Rule 1 of The Code of Civil Procedure, 1908, is dismissed but accepting the application under Order XLI, Rule 27 of The Code of Civil Procedure, 1908, made on 13.08.2010.
14.  As observed earlier, since the application made before the appellate Court on 20.05.2010 was not decided, therefore, the same shall be decided in accordance with law.
15.  There shall be no order as to costs.
(R.A.)  Petition accepted

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