ZAFAR IQBAL And Others vs BASHIR AHMAD KHAN And Other
This petition for leave to appeal arises out of a suit for specific performance of a contract for the sale of immovable property instituted on September 4, 1980. During the proceedings, the petitioners filed an application under Order XIII Rule 2 and Order XVIII Rule 2 of the Code of Civil Procedure 1908 to produce in evidence a tape-recorded cassette of a conversation between a plaintiff and a defendant. The trial court refused the application, and the High Court declined to interfere in revision. The core legal question before the Supreme Court was whether the refusal by the lower courts to admit additional documentary evidence at a late stage warranted interference. The Supreme Court held that the trial court possessed discretionary power under Order XIII Rule 2 of the Code of Civil Procedure 1908, which was exercised judiciously in accordance with the High Court Rules and Orders, and the High Court committed no defect in upholding it. The key principle laid down is that the discretionary exercise of power by a trial court in admitting or refusing late documentary evidence, when based on recorded reasons and consistent with procedural rules, will not be interfered with by the Supreme Court.
- Whether a trial court has discretion to refuse the production of documentary evidence sought to be introduced at a late stage under Order XIII Rule 2 of the Code of Civil Procedure 1908?
- Can the High Court's refusal to interfere with a trial court's discretionary order on evidence be challenged before the Supreme Court?
- Whether failure to file a list of documents in terms of High Court Rules and Orders permits the unrestricted late production of documentary evidence?
- Order XIII Rule 1, Code of Civil Procedure 1908
- Order XIII Rule 2, Code of Civil Procedure 1908
- Order XVIII Rule 2, Code of Civil Procedure 1908
ORDER
1. SHAFIUR RAHMAN, J.--In a pending suit for specific performance of contract for sale of immovable property instituted on 4-9-1980 an application was filed on 10-3-1983 under Order XI II rule 2, C . P .
2. C . And Order XVIII, rule 2, C.P.C. For producing in evidence a tape---recorded cassette of conversation between one of the plaintiffs (Zafar Iqbal) and one of the defendants (Bashir Ahmad Khan). It was refused by the trial Court. In revision the High Court refused to interfere. Hence this application for leave to appeal.
3. The learned counsel for the petitioner has advanced a new ground for acceptance of the application and for challenging its refusal by the two Courts. It is contended that as the plaintiffs were not called upon in terms of requirement of High Court Rules and Order, Vol. 1, Chapter 1, Part 'G' to file a list of documents and witness the petitioner could not in view of the decision in Abdul Aziz v.
4. Abdullah and others PLD 1952 B J 1 be denied an opportunity of producing evidence. According to the learned counsel it is a pure question on law which can in terms of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 be raised in appeal. In addition the learned counsel contended that the petitioner had a right of rebuttal and he could produce the evidence on the subject.
5. Para. 4 of the same Chapter of the High Court Rules and Order provides as follows:- "4. The above provisions as regards the production of the documents at the initial stage of a suit are intended to minimise the chances of fabrication of documentary evidence during the course of the suit as well as to give the earliest possible notice to each party of the documentary evidence relied upon by the opposite party. These provisions should, therefore, be strictly observed, and if any document is tendered at a later stage, the Court should consider carefully the nature of the document sought to be produced (e.g. Whether there is any suspicion about its genuineness or not) and the reasons given for its non-production at the proper stage, before admitting it. The fact of a document being in possession of a servant or agent of a party on whose behalf it is tendered is not itself a sufficient reason for allowing the document to be produced after the time prescribed by Order XIII, rule 1. The Court must always record its reasons for admission of the document in such case, if it decides to admit it (Order XIII, rule 2)."
6. The trial Court has in refusing the fresh evidence complied with para. 4. The law cited by the learned counsel for the petitioner also bears it out that the trial Court has the discretion in the matter of admission of evidence production of which was sought at a later stage of the proceedings. That discretion has been exercised for the reasons recorded. The High Court has not found any defect in it. We do not see how the exercise of such a discretionary power can be made the subject-matter for further examination in this Court. Hence leave to appeal is refused.