Raja Omar Khalid etc VS Raja Adnan Mehmood & another

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

C.R.No.152 of 2023 Raja Umar Khalid and others Versus Raja Adnan Mehmood and others Date of Hearing: 16.11.2023 Petitioner by: Mr. Kashif Ahmad Khan, Advocate. Respondent by: Mr. Abdul Kamran Butt, Advocate for respondent No.1.

MIANGUL HASSAN AURANGZEB, J:- Through the instant civil revision petition, the petitioners impugn order dated 12.07.2023 passed by the Court of the learned Civil Judge, Islamabad whereby their application for the production of documents was rejected on the sole ground that the documents which were not mentioned in the list filed under Order XIII, Rule 1 of the Code of Civil Procedure, 1908 (“C.P.C.”) could not be produced in evidence.

2.Learned counsel for the petitioners submitted that the documents which the petitioners wanted to produce in evidence were referred to in paragraph 6 of the written statement; that a copy of the order dated 04.01.2019 (which was one of the documents that the petitioners’ wanted to produce) was annexed to the written statement; that the documents which the petitioners wanted to produce were the record of the proceedings before the Additional Deputy Commissioner (Revenue); that after respondent No.1 raised an objection to the production of such documents during DW.1’s cross-examination, the petitioners on the very same day i.e. 04.05.2023 filed the application for the production of documents; that the said application had been arbitrarily dismissed by the learned Civil Court vide impugned order dated 12.07.2023; that the impugned order has caused serious prejudice to the petitioners’ case; and that the documents which the petitioners wanted to produce would not have taken respondent No.1 by surprise as reference to such documents had been made in paragraph 6 of the written statement. Learned counsel for the petitioners sought the petition to be allowed in terms of the relief sought therein.

3.On the other hand, learned counsel for respondent No.1 submitted that the documents which the petitioners wanted to produce were already in existence when the written statement was filed; that there was nothing preventing the petitioners from mentioning such documents in the list submitted under Order XIII, Rule 1 C.P.C.; that the application for production of documents was filed after the evidence of the respondents / plaintiffs had already been recorded and DW.1 had already produced his affidavit in evidence; that Order XIII, Rule 1 C.P.C. is couched in mandatory terms and therefore it was essential for the petitioners to have mentioned the documents that they wanted to produce in the list submitted under the said provision; and that the petitioners have not come up with a “good cause” for not mentioning such documents in the list filed under Order XIII, Rule 1 C.P.C. Learned counsel for respondent No.1 prayed for the revision petition to be dismissed.

4.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.

5.It is not disputed that the petitioners did not mention the documents with respect to which the application for the production of documents was filed on 04.05.2023 in the list submitted under Order XIII, Rule 1 C.P.C. The petitioners had however in their written statement clearly pleaded about the earlier litigation before the learned Additional Deputy Commissioner (Revenue) as well as the order dated 04.01.2019 passed in such litigation. In this regard, paragraph 6 of the written statement is reproduced herein below:- “6. That the Plaintiff in convenience of Defendant No.1 first tried to get cancel the mutation which, were sanctioned in favor of the answering Defendants by moving an application before the Learned ADCR, in which inquiry was conducted and latterly the Defendant No.1 appeared and withdraw his petition and affirms on oath before the Learned Tehsildar Islamabad that he has no claim against the answering defendants and he didn’t want to pursue his petition.

(Copy of the said order dated: 04-01-2019 along with statement of Defendant No.1 is annexed)”

6.The sole witness produced by the petitioners i.e. DW.1 did not produce the said documents along with his affidavit in evidence but had made specific reference to the earlier litigation in such affidavit. The documents which the petitioners attempted to produce were the attested record of the earlier litigation before the learned Additional Deputy Commissioner (Revenue). Indeed, the petitioners made the mistake of not mentioning such documents in the list submitted under Order XIII, Rule 1 C.P.C. But since reference to such documents had been made in the written statement, I am of the view that the non-mentioning of such documents in the list submitted under Order XIII, Rule 1 C.P.C. is not fatal. However, for such mistake the petitioners need to be penalized.

7.In view of the above, the instant revision petition is allowed; the impugned order dated 12.07.2023 is set-aside; DW.1 shall be permitted to produce the record of the proceedings to which reference has been made in paragraph 6 of the written statement; and respondent No.1 shall have the right to cross-examine DW.1. For the omission to mention the documents pertaining to the litigation referred to in paragraph 6 of the written statement, the petitioners shall pay costs of Rs.25,000/- to respondent No.1 on the next date of hearing before the learned Civil Court.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN AN OPEN COURT ON 20.11.2023.

(JUDGE)

Sultan*