RAB NAWAZ vs MUHAMMAD NAWAZ And 2 OTHER

Brief facts of the case are that the petitioner had filed a suit for specific performance of agreement dated 14-5-1990 against respondent No.1, in respect of agricultural land measuring 50 Kanals 2 Marlas situated in Chak No. 73/10-R, Tehsil and District Khanewal, in the Court of Senior Civil Judge, Khanewal. During the pendency of the civil suit; respondents No.2 and 3 fled an application for being impleaded as a party on the ground that they had been alienated the land in question by Muhammad Nawaz----respondent No.l through Mutation No.268-dated 16-5-1991. This application was allowed.

2. Issues were framed on 7-3-1992 and four dates were given to the petitioner for production of his evidence, last date in the series being 18-10-1992. On 30-11-1992, an application was made by the petitioner under Order XIII, Rule 2, C.P.C. for permission to place on record a copy of the receipt dated 14-5-1990 regarding alleged payment of a sum of Rs.2,50,000 as earnest money. It was submitted that this document was scribed by a petition writer and it was duly entered in his register at serial No.10 dated 14-5-1990, and the agreement of sale found mentioned at serial No.9 of the same register. It was due to rush of work that Mian Manzoor Ahmad, learned counsel for the petitioner (since dead) inadvertently failed to place the copy of the said receipt on record at the time of filing of the civil suit.

This application did not find favour with the learned trial Court and was rejected on 14-3-1993.

Hence this civil revision.

3. It is contended by the learned counsel for the petitioner that the justice of the cause demanded that an opportunity was given to the petitioner to place on record copy of the receipt in question.

The case was still at the stage of evidence and no prejudice would be caused to the opposite- party by production of the said document on record.

On the contrary, the learned counsel for the contesting respondents has urged that the document in question, not having been mentioned in the list of documents, annexed with the plaint, should not be allowed to be brought on record at this late stage. According to the learned counsel, the petitioner has availed of four opportunities for production of evidence and last date i.e. 18-10-1992 which was fixed as a final date for production of evidence had also been allowed to go unavailed of, by the petitioner. According to the learned counsel no justifiable cause has been shown for fail to place this document on record at the time of the institution of the suit and the trial Court, therefore, has committed no illegality in turning down the request of the petitioners, in this regard.

4. The petitioner should have annexed. the document in question with the plaint at the time of the filing of the suit. It is, however, explained that Mian Manzoor Ahmad, counsel of the petitioner was the senior most lawyer at Khanewal and was overworked and it is due to rush of work that he in-- advertently omitted to annex this document with the plaint. Mian Manzoor Ahmad had, unfortunately, died in the meantime. The petitioner should not suffer for the default negligence of the counsel. It is not denied that this document does find mention in the register of the petition writer, like the agreement of sale, in question. Whether or not the two documents were genuine and could form the basis of a decree, as prayed for, is a matter of evidence, law leans in favour of adjudication on merits and technicalities are to be avoided. The petitioner should not be penalized for failure to comply with the terms of Order XIII, Rule 2, C.P.C. The learnedCivil Judge, therefore, should have permitted the production of this document on record. The interest of respondents could have been looked after by imposition of costs.

5. In this view of the matter, this revision petition is accepted and the order of the learned Civil Judge dated 14-3-1993 is set aside and permission is granted to the petitioner to place on record the document in question i.e. the receipt dated 14-5-1990, subject to the payment of cost of Rs.3,000.

The case is fixed before trial Court for 24-6-1993. The learned trial Court shall grant last opportunity to the petitioner to produce his entire evidence and for this purpose may fix any date in the 2nd week of September, 1993, where after his evidence would be closed. No costs in this revision petition.