Defence Science & Technology Organization vs Arif Engineering International

Stereo.HCJDA 38.

Judgment Sheet

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

CIVIL REVISION NO.700 OF 2022

DEFENCE SCIENCE & TECHNOLOGY ORGANIZATION

versus

ARIF ENGINEERING INTERNATIONAL

JUDGMENT

Date of Hearing 29.09.2026.

Applicant by: Mr. Usman Jillani, Advocate.

Respondent by: Ex-parte.

MIRZA VIQAS RAUF, J. This revision application in terms of Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as “CPC”) stems from order dated 17th October, 2022, whereby learned Civil Judge Class-I, Rawalpindi proceeded to allow an application for production of secondary evidence, moved by the respondent.

2.Facts in brief, forming background of this revision application, are that the respondent instituted a suit for recovery of an amount of Rs.100,960,065/- alongwith markup against the applicant before the learned Senior Civil Judge, Rawalpindi. The suit was resisted by the applicant, being the defendant. During the proceedings, the respondent moved an application, seeking permission to produce secondary evidence qua the documents mentioned therein with the assertion that said documents are in possession of the applicant. The application was resisted by the applicant but it was allowed by way of the impugned order.

3.This revision application was admitted for regular hearing vide order dated 10th November, 2022 and notice was issued to the respondent, who in response thereof arranged its representation through Barrister Gohar Ali Khan. On 14th September, 2026 due to absence on the part of the respondent, it was proceeded against ex-parte and office was directed to list out this revision application for ex-parte hearing.

4.I have heard learned counsel for the applicant at considerable length and perused the record.

5.The matter in issue is since offshoot of an order passed on an application, seeking permission to produce secondary evidence, so there is no need to delve into desultory facts. Article 76 of the Qanun- e-Shahadat Order 1984 (hereinafter referred to as “Order”) deals with the cases in which secondary evidence, relating to documents, may be given. For ready reference, same is reproduced below: -

76.Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition or contents of a document in the following cases:

(a)when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court; or of any person legally bound to produce it; and when, after the notice mentioned in Article 77, such person does not produce it;

(b)when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c)when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d)when, due to the volume or bulk of the original, copies thereof have been made by means of microfilming or other modern devices.

(e)when the original is of such a nature as not to be easily movable;

(f)when the original is public document within the meaning of Article

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(g)when the original is a document of which a certified copy is permitted by this Order, or by any other law in force in Pakistan, to be given in evidence;

(h)when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

(i)when an original document forming part of a judicial record is not available and only a certified copy thereof is available, certified copy of that certified copy shall also be admissible as a secondary evidence.

In cases (a), (c), (d) and (e), any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admissible.

In case (f) or (g), certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (h), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

[Underlining is supplied for emphasis]

From the bare perusal of above noted provision, it is manifestly clear that it provides multiple eventualities in which the court can allow the parties to lead secondary evidence but the respondent’s case is covered under Paragraph (a). For invocation of said provision, it is incumbent upon the person, seeking permission to produce secondary evidence to establish that the original documents, qua which secondary evidence is to be produced are in possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it. But before invoking said provision, due compliance to Article 77 of the Order is necessary, which ordains that secondary evidence of the contents of the documents referred to in Article 76, Paragraph (a) shall not be given unless the party proposing to give such evidence has previously given to the parties in whose possession or power the document is, or to his advocate such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the court considers reasonable under the circumstances of the case. It is also pre-condition for

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invoking the said provision that after notice in terms of Article 77 of Order, such person does not produce the required document(s).

6.For the purpose of secondary evidence, one cannot lose sight of the relevant provisions contained in CPC as well. Order XII of CPC deals with the situation at hand. Rule 2 of the said Order ordains that either party may call upon the other party to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in opinion of the court, a saving of expense. Rule 2 of Order XII of CPC was, however, substituted through High Court amendment vide Notification No.237/Legis/XI- Y-26 dated 15.08.2018 w.e.f. 01.11.2020 vide Notification No.259/Legis/XI-Y-26 dated 23.10.2020, which now read as under: -

2.Admission of documents. – (1) The Court shall also require the parties to admit or deny the documents annexed with the plaint or, as the case may be, the written statement.

(2)If a party fails to comply with the direction under sub- rule (2), the Court may proceed against such party under rule 21 of Order XI.

(3)If a party denies a document which is proved at the trial, the Court shall burden such party with such heavy costs as it may deem fit.

Rule 8 of Order XII of CPC provides mode in which any party can serve a notice to the adversary for production of document. Admittedly, due compliance was not made either to Article 77 of the Order or Order XII of CPC by the respondent before invoking the provisions of Article 76 of the Order; nevertheless, the application was allowed by the learned Civil Judge Class-I, Rawalpindi in a mechanical manner, which course is not permissible. Reference to this effect can be made to CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad versus MUHAMMAD HANIF ABBASI and 4 others (2020 CLC 1804) and MUHAMMAD AKRAM versus

MUHAMMAD ASIF (2022 CLC 1137).

7.For the foregoing reasons, this revision application is allowed and the impugned order dated 17th October, 2022 passed by learned Civil Judge Class-I, Rawalpindi is set-aside, as a sequel, the application moved by the respondent shall be deemed to be dismissed, with no order as to costs.

(MIRZA VIQAS RAUF)

JUDGE

Sajjad

APPROVED FOR REPORTING

JUDGE