Ejaz Vs Pir Khitab Shah

PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

FORM ‘A’

FORM OF ORDER SHEET

Date of Order ORDER OR PROCEEDINGS WITH SIGNATURE OF or Proceedings

JUDGE/JUDGES

08.09.2025 WP No. 1034-A/2025

Present:- Mr. Haibet Khan, Advocate for the petitioners.

SADIQ ALI, J.- Through the present writ petition, petitioner seeks constitutional jurisdiction of this Court praying that:- “On acceptance of the instant writ petition, the impugned judgment and decree dated 17.07.2025 passed by learned respondent No. 3 may graciously be set aside while order dated 30.05.2024 passed by learned trial Court/respondent No. 2 may kindly be restored/maintained. Any other relief as deemed fit and proper in the circumstances of the case.”

2.Facts leading to filing of instant petition are that the respondent No. 1 filed a suit for declaration etc.

challenging therein mutations No. 7080 attested on 05.09.2005, mutation No. 7513 attested on 28.03.2007, mutation No. 7331 attested on 13.01.2007, claiming the same to be the result of fraud and collusion. It was contended by the plaintiff/respondent that the mutations

were attested taking benefit of his absence as by that time he was abroad. The defendants in the suit were summoned by the learned trial Court. Some of the defendants filed their written statement, whereas present petitioner who was defendant No. 3 in the suit, filed an application for issuance of direction to the plaintiff/respondent to submit passport or copies thereof before the learned trial Court.

Said application was allowed by the learned trial Court vide order dated 30.05.2024, with direction to the respondent/ plaintiff to submit his passport within 15 days, failing which, adverse inference would be drawn against him and he would face the legal consequences. Feeling aggrieved, the respondent filed revision petition before the learned District Juge, Mansehra, who was pleased to accept the same vide impugned judgment and order dated 17.07.2025. Feeling aggrieved from the order of learned Revisional Court, the petitioner has approached this Court through instant petition.

3.Arguments heard and record gone through.

4.Perusal of the record reveals that the respondent has challenged certain mutations, claiming the same to be the result of fraud and collusion and though he claimed that he remained abroad for most of the time

during 1987 till 2017 and thus could not get knowledge of said mutations, however, such facts have been asserted by him in his plaint and the burden to prove the same would also lie on him. The plaintiff/respondent would be bound to prove the facts alleged by him in his plaint, however, said exercise could only be carried out when the facts asserted by him in his plaint are negated by the defendants in their written statement, followed by framing of issues on the point and affording opportunity to the parties to lead their respective evidence. At present, the petitioner has failed to deny such assertions of the

respondent/plaintiff, by filing his written statement. Prior to filing of written statement, the assertions raised by the present petitioner through any sort of application, cannot be considered to be his defense nor amount to denial of assertions of the plaint.

5.Learned counsel for the petitioner relied upon judgments reported as PLD 1994 Lahore 298 as well as 1988 CLC 1532, by submitting that the plaintiff is required to produce any such document, upon which his claim rests.

No doubt, the submission of learned counsel for the petitioner holds field but in the instant case, the claim of the petitioner is not based on his passport alone, rather he

had claimed that the mutations were attested in his absence and most of the time he remained abroad. The case laws referred by the learned counsel carry distinguished circumstances. In the case reported as PLD 1994 Lahore, the suit was filed for specific performance of agreement and that agreement could not be produced in original, while in the case reported as 1988 CLC 1532, the power of Civil Court to send any document for examination, has been explained. Thus the referred case laws have no nexus to the facts and circumstances of the case in hand.

6.No doubt under Order-XIII Rule-1 CPC, it is incumbent upon the parties to produce their documentary evidence at the first hearing of the suit. However, it is well settled law that the first hearing of the suit is the date when the Court frames issues after filing of written statement by the defendants as provided in Order-X Rule-1 of the CPC.

Reference may be made to the case reported as 2000 M L D 2047[Supreme Court (A J &K)]and(P L D 1981 Lahore 95).

7.Moreover, the law has provided opportunities to the parties to produce documents of their reliance by specifying different stages of the proceedings in the suits.

The first stage for production of documents in a suit arises

at the time of filing the plaint by the plaintiff as per Order VII Rule 14 CPC, and for the defendant at the time of submitting the written statement. If this opportunity is not availed, a party may proceed under Order XI Rule 1 CPC to deliver interrogatories if it believes that the opposing party holds documents relevant to its claim or defense.

Failing that, recourse may be taken under Order XI Rule 12 CPC to compel the other party, through court direction, to disclose all documents in their possession relating to the issues at hand. On the first hearingi.e., the date of framing of issues, all parties must produce any documentary evidence not previously submitted, as required by Order XIII Rule 1 CPC. Furthermore, under Order XIV Rule 4 CPC, the Court may compel production of documents if it deems them necessary for properly framing the issues.

While documents produced at a late stage may generally be discouraged, they can be accepted if their genuineness is undisputed, such as in cases involving authentic public documents (2001 YLR 2272; 2009 YLR 2265). The purpose behind Order XIII Rules 1 and 2 CPC is to avoid surprises, ensure procedural transparency (2006 CLC 534 Lahore), exclude forged documents, and expedite the trial without penalizing parties for initial non-production (1999

CLC 1142 Lahore; PLD 2020 Quetta 5; 2018 CLC 1569 Islamabad; 2016 YLR 2197 Karachi; 2009 YLR 2265 Lahore). Non-filing of documents with the plaint is not considered fatal, as the Court retains discretion to allow documentary evidence during trial proceedings (2005 SCMR 152; 2016 YLR 2197 Karachi). The party seeking late production would, however, be required to show “good cause” to the satisfaction of the trial court (1999 SCMR 951), which may include the necessity of the document for an effective decree (2017 CLCN 180 Lahore). The learned trial Court has failed to appreciate the law on the subject and fallen into error while coercing the respondent to produce his passport at initial stage of proceedings, even before the date of hearing, however, such irregularity of the learned trial Court has been regularized by the learned Revisional Court through impugned order, to which no exception could be taken.

8.Learned counsel for the petitioner failed to make out a case for interference of this Court in its constitutional jurisdiction. Accordingly, this petition being bereft of merits is, dismissedin limine. Announced.

JUDGE

Tufail/* Hon’ble Justice Sadiq Ali, J.