Exhibition of Fake death certificate challenge | case law.
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دستاویزات کو 'ڈی-ایگزیبٹ' کرنے کی کوئی قانونی بنیاد نہیں ہے
**فیصلہ**
1. اس فیصلے کے ذریعے میں مذکورہ پٹیشن اور آئینی پٹیشنز نمبر 10609 اور 10611، جو قانونی سوالات اور حالات کے حوالے سے مشابہ ہیں، کا فیصلہ کرنا چاہتا ہوں۔
پس منظر
2. مقدمہ کی حقیقت یہ ہے کہ محمد شفیع اور محمد یاسین (جو کہ مدعا علیہ نمبر 2 اور 3 ہیں) نے 04.10.2014 کو ایک مقدمہ دائر کیا جس میں وراثتی جائیداد کے بارے میں اعلان طلب کیا گیا تھا۔ مدعا علیہان کے خلاف ایک طرفہ کارروائی شروع کی گئی اور ایک طرفہ ثبوت کی بنیاد پر مقدمہ کا فیصلہ سنایا گیا۔ 18.03.2022 کو مستغیث نے سی پی سی کی دفعہ 12(2) کے تحت درخواست دائر کی، جس میں یہ دعویٰ کیا گیا کہ اس کی والدہ، مسز نصرت، 2012 میں وفات پا چکی تھیں، حالانکہ ان کا نام مقدمے میں مدعا علیہ نمبر 8 کے طور پر شامل کیا گیا تھا اور کچھ موت کے سرٹیفیکیٹ جعلی تھے۔ مستغیث نے ایک طرفہ حکم اور فیصلے کو کالعدم کرنے کی درخواست کی۔ 20.05.2023 کو عدالت نے مسائل مرتب کیے اور گواہی کا عمل شروع کیا۔ 21.06.2023 کو وکیل نے بغیر حلف کے بیانات میں کچھ دستاویزات کو نمبرز (Ex.PA-1 تا Ex.PA-29) دیے۔ اس کے بعد 27.06.2023 کو مدعا علیہان نمبر 2 تا 5 اور 11 تا 13 نے ان دستاویزات کو 'ڈی-ایگزیبٹ' کرنے کی درخواست دائر کی۔ اس درخواست کے بعد، 19.10.2023 کو عدالت نے ان دستاویزات کو 'ڈی-ایگزیبٹ' کرنے کا حکم دیا، جسے 29.01.2024 کو نظرثانی عدالت نے مسترد کر دیا۔ مستغیث نے اس حکم کے خلاف آئینی درخواست دائر کی۔
مدعی کے وکیل کا موقف
3. مستغیث کے وکیل، محمد اختر رانا، نے کہا کہ دستاویزات کو وکیل کے بغیر حلف کے بیانات میں پیش کیا گیا تھا، اور مدعا علیہان نے اس وقت کوئی اعتراض نہیں اٹھایا تھا۔ وکیل نے یہ بھی کہا کہ نظرثانی عدالت نے 19.10.2023 کا حکم بغیر کسی مناسب غور و فکر کے جاری کیا اور اس پر درست قانونی فیصلے کو نظر انداز کیا۔
مدعا علیہ کے وکیل کا موقف
4. مدعا علیہان کے وکیل، میاں عمر فاروق، نے اس درخواست کی مخالفت کی اور کہا کہ عدالت نے دستاویزات کو بغیر حلف کے بیانات میں پیش کرنے کی اجازت دی، جو سپریم کورٹ پاکستان کے اصولوں کے خلاف ہے۔ انہوں نے کہا کہ مدعا علیہان کو اس طرح کے دستاویزات پر جرح کا موقع نہیں ملا۔
ریکارڈ کا جائزہ
5. عدالت نے ریکارڈ کا جائزہ لیا اور اس نتیجے پر پہنچی کہ دستاویزات کی قبولیت کے حوالے سے اعتراضات دو اقسام کے ہوتے ہیں: (الف) دستاویزات غیر متعلقہ یا غیر قابل قبول ہیں؛ (ب) دستاویزات کے ثبوت کی ترتیب میں بے ضابطگیاں۔ اگر اعتراض صرف ثبوت کی ترتیب کے بارے میں ہو، تو یہ اعتراض دستاویزات کو 'ایگزیبٹ' کے طور پر نشان زد کرنے کے بعد نہیں اٹھایا جا سکتا۔
دستاویز ڈی ایگزیبٹ کرنا۔
6. عدالت نے کہا کہ دستاویزات کو 'ڈی-ایگزیبٹ' کرنے کی کوئی قانونی بنیاد نہیں ہے کیونکہ سی پی سی میں ایسا کوئی حکم نہیں ہے۔ دستاویزات کو غیر قانونی طور پر حذف کرنا عدالت کے اختیارات میں نہیں آتا اور اس سے انصاف کی فراہمی میں رکاوٹ ہو سکتی ہے۔
فیصلہ
7. عدلیہ نے فیصلہ کیا کہ مقدمے کی کارروائی اور نظرثانی عدالت کے فیصلے میں مناسب قانونی غور و فکر کی ضرورت ہے۔ عدالت نے موجودہ حالت کو مدنظر رکھتے ہوئے فریقین کے حقوق اور مقدمے کی منصفانہ سماعت کی ضرورت پر زور دیا۔
**فیصلہ:** عدالت نے نظرثانی عدالت کے فیصلے کو کالعدم قرار دیا اور مقدمے کی دوبارہ سماعت کا حکم دیا تاکہ تمام دستاویزات اور قانونی اصولوں کا جائزہ مناسب طریقے سے لیا جا سکے۔
Must read Judgement
A-38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT,LAHORE
JUDICIAL DEPARTMENT
Writ Petition No. 10608 of 2024
Mst. Afia Ambrine
Vs.
Addl. District Judge, Sialkot and 14 Others
JUDGMENT
Date of hearing 12.06.2024.
Petitioner by
Mr. Muhammad Akhtar Rana,
learned Advocate.
Respondents
No. 2 to 5 and
11 to 13 by
Mian Umar Farooq, learned
Advocate.
Respondents
No. 6 to 10 and
14
Ex-parte.
SULTAN TANVIR AHMAD, J:- Through
this single judgment, I intend to decide the captioned
petition as well as Constitutional Petitions No. 10609 and
10611 of 2024, involving similar question(s) of law and
facts.
2.
The facts of the titled case are that Muhammad
Shafi and Muhammad Yaseen (respondent No. 2 and 3)
instituted suit dated 04.10.2014 (the „suit’) seeking
declaration with respect to inherited property as detailed in
the relevant paragraphs of the suit. Ex-parte proceedings
were initiated against the defendants of the suit and on the
basis of ex-parte evidence, the suit was decreed. On
18.03.2022 the petitioner instituted an application under
section 12(2) of the Code of Civil Procedure, 1908 (the
„Code’), inter alia, on the grounds that her mother namely
Mst. Nusrat daughter of Ferozedin died in the year 2012,
whereas, she has been fraudulently reflected in the array of
parties as defendant No. 8 in the suit; that some death
certificates, appended with the suit were bogus. The
petitioner has sought to set-aside ex-parte judgment and
decree. The learned trial Court framed the issues on
20.05.2023 and initiated the process of adducing evidence.
After oral evidence certain documents were marked as
Ex.PA-1 to Ex.PA-29 in the without oath statement of the
learned counsel given on 21.06.2023. In this regard, separate
short order was also passed by the learned trial Court
reflecting that the evidence of the petitioner has been
completed and directed the other side to produce their
evidence. On 27.06.2023 respondents No. 2 to 5 and 11 to
13 filed an application to de-exhibit the aforementioned
documents with the stance that the law does not permit
documents to be marked as exhibits in the statement of the
learned advocate, depriving them from their right to crossexamine the relevant witness(s); without referring to any
documents objection was also taken in the application that
some documents issued from Kenya have been marked as
exhibit without complying with the provision of relevant
law. After contest on this application, on 19.10.2023 the
learned trial Court passed another order to de-exhibit the
documents which were earlier allocated numbers from
Ex.PA-1 to Ex.PA-29. This order was assailed in Civil
Revision No. 83 of 2023 which was dismissed by the learned
revisional Court vide judgment dated 29.01.2024. Aggrieved
from the same, Mst. Afia Ambrine has instituted the titled
petition as well as the connected petitions, under Article 199
of the Constitution of Islamic Republic of Pakistan, 1973.
3.
Mr. Muhammad Akhtar Rana, learned counsel
for the petitioner has submitted that the documents were
brought on record in the presence of learned opposing
counsel, who never raised any objection for producing the
said documents, in without oath statement. Learned counsel
for the petitioner has contended that the learned revisional
Court has ignored that order dated 19.10.2023 is passed in
mechanical manners and without application of judicial
mind; that the order to de-exhibit is against the principle
settled by the learned Islamabad High Court in case titled
“Malik Riazullah Versus Mst. Dilnasheen and Others”1
as
well as by this Court in case titled “Muhammad Arif and
Others Versus Aziz-ur-Rehman and Others”2
. Learned
counsel for the petitioner has stated that the expression “deexhibit” is neither defined nor mentioned in the Code; that
the order of de-exhibiting or removing the documents from
record is illegal being alien to the provisions of the Code. It
1
2018 CLC 1569
2
2023 CLC 713
is added by the learned counsel for the petitioner that
somehow the learned two Courts below have ignored that
the documents which have been brought on record, in the
application under section 12(2) of the Code, as exhibits were
already part of the record in the suit which was ex-parte
decreed on 20.04.2016 and when the opponent party has
relied on the same documents they should have been
construed as admitted documents and in such circumstances
there was no scope to pass an order of de-exhibit.
4.
Mian Umar Farooq, learned counsel for
respondents No. 2 to 5 and 11 to 13, has vehemently
opposed this petition. He contended that the learned trial
Court on 21.06.2023 permitted the petitioner-side to bring on
record the documents in the without oath statement of her
learned advocate and such practice has repeatedly been
discouraged by the Supreme Court of Pakistan, thus, the
order based on error of law and in defiance of the guidelines
given by the Supreme Court is liable to be corrected by way
of passing an order to de-exhibit those documents. The
learned counsel for the respondents has supported the
impugned judgment and the order while stating that the
respondents, by allowing the documents to be brought on
record through the above without oath statement, were
deprived from their right to cross-examine as to the same.
He further contended that order to mark exhibits to the
documents was passed in absence of the representative of the
respondents and the objection was then taken just within five
working days thereof.
5.
Heard. Record perused.
6.
It is now well settled that the objections with
respect to admissibility of the documents can be of two
kinds: (a) document is inadmissible in evidence being
irrelevant or not capable for being considered in evidence
(hereinafter called as the “inadmissibility in evidence”); and
(b) objections directed towards the mode of proof due to
irregularity or insufficiency (hereinafter called as the “mode
of proof”). If no objection is raised as to the inadmissibility
in evidence but just the mode of proof, after the document
has been marked as exhibit, the principle of waiver for
failing to raise objection as to the formal validity can be
attracted. The proper time for raising such objection as to
formal validity or the mode of proof is prior to marking a
document as exhibit or at the time when it is sought to be
marked as an exhibit. These objections should be taken at
earliest. Once document has been tendered and marked as
an exhibit, belated objection as to the mode of proof is
discouraged by the Courts. The prudence behind the same is
avoiding any disadvantage to the party that has produced
such documents but without adopting regular mode and this
document, if otherwise is not liable to be rejected and
irrelevant to the issue, is just discarded for not complying
with the procedure that too having passed the stage to cure
this mistake, can cause miscarriage of justice. However,
when objection is taken at appropriate time, it would have
enabled the party, tendering the document, to cure defect and
resort to such mode of proof as would be required. In “Mst.
Akhtar Sultana Versus Major Retd. Muzaffar Khan Malik
through his legal heirs and Others”3
the Supreme Court of
Pakistan explained the same as follows:-
“12. What is important to note is that, as a
general principle, an objection as to
inadmissibility of a document can be raised at
any stage of the case7
, even if it had not been
taken when the document was tendered in
evidence. However, the objection as to the
mode of proving contents of a document or its
execution is to be taken, when a particular
mode is adopted by the party at the evidencerecording stage during trial. The latter kind of
objection cannot be allowed to be raised, for
the first time, at any subsequent stage8
. This
principle is based on the rule of fair play. As if
the objection regarding the mode of proof
adopted has been taken at the appropriate
stage, it would have enabled the party
tendering the evidence to cure the defect and
resort to other mode of proof. The omission to
object at the appropriate stage becomes fatal
because, by his failure, the party entitled to
object allows the party tendering the evidence
to act on assumption that he has no objection
about the mode of proof adopted.”
(Emphasis supplied)
7.
In “Gulzar Hussain Versus Abdur Rehman and
another”4, a five members bench of Honourable Supreme
Court of Pakistan adopted the view that the respondents
were not entitled to raise objection as to the proof of this
3
PLD 2021 Supreme Court 715
4
1985 SCMR 30
document since they had not raised such objection at the
time of document was exhibited on record. It will also be
beneficial to reproduce paragraph No. 13 of the said
judgment:-
“13. Coming now to the facts of this
case the document in question was apparently
a certified copy of the Revenue Record which
was produced in the trial Court on an express
permission obtained by the appellant. It is no
doubt true that the respondents objected to the
application of the appellant to produce further
evidence after having closed his evidence
earlier. But the Court allowed the request of
the appellant and permitted him to adduce
additional evidence consisting of documents
including Exh. P.4. There is nothing on the
record to indicate as to whether the
respondents objected to the mode of proof in
respect of this document at this stage.
Objecting to a further opportunity being
provided to the plaintiff to produce additional
evidence is quite different from objecting to the
admissibility of the document on the ground of
mode of proof, It was argued on behalf of the
respondents that there was no order of the
Court that the document be exhibited. We are,
however, unable to verify the correctness of
this statement from the present record.
However, there is on record the statement of
the Advocate producing these documents and
an exhibit number has been assigned to the
document in question. In the judgments of the
Courts below also the document has been
referred to as Exh. P.4 - and there is nothing
on the record to indicate as to whether the
respondents raised this objection that the
document was not exhibited by the Court, at
any earlier stage. The rule of law laid down by
this Court, therefore, was fully attracted in this
4
8
case and the respondents are debarred from
raising the question of the formal proof of this
document at subsequent stage.”
(Underlining is mine)
8.
In “Gopal Das and another Versus Sri
Thakurji and Others”5
the Privy Council held that where the
objection is not that the document is in itself inadmissible
but that the mode of proof is irregular or insufficient it is
essential that the objection should be taken at the trial before
the document is marked as an exhibit and admitted to the
record. It was further observed that strict formal proof might
or might not have been forthcoming had it been insisted on
at the trial. The objection taken at the appellate stage as to
the formal proof was repelled, in the following manners:-
“……..The endorsement means that the
document is admitted in evidence as proved.
Where the objection to be taken is not that the
document is in itself inadmissible but that the
mode of proof put forward is irregular or
insufficient it is essential that the objection
should be taken at the trial before the
document is marked as an exhibit and admitted
to the record. A party cannot lie by until the
case comes before a Court of appeal and then
complain for the first time of the mode of
proof. A strictly formal proof might or might
not have been forthcoming had it been insisted
on at the trial. In the present instance, it does
not appear that the objection was taken at the
proper time or that it would have been of any
avail had it been taken...”
(Underlining is added)
9.
The failure to take objection as to the
inadmissibility in evidence of document as opposed to the
mode of proof, however, is not fatal. The above rule of fair
play is also reflected in “P.B. Gajendragadkar, C.J., K.N.
Wanchoo, M.Hidayatullah, Versus Ramaswami and P.
Satyanarayana Raju, JJ.”6
as well as “R.V.E. Venkatachala
Gounder Vs Arulmigu Viswesaraswami & V.P. Temple”7
.
Paragraph No. 20 of the “R.V.E. Venkatachala Gounder”
case (supra) is repeatedly cited and relied in various cases
including “Dayamathi Bai (SMT) Versus K.M. Shaffi”8
and
“State of Gujarat Versus Ashokkumar Lavjiram Joshi”9. The
paragraph reads:-
“The learned counsel for the defendantrespondent has relied on The Roman Catholic
Mission Vs. The State of Madras & Anr.AIR
1966 SC 1457 in support of his submission that
a document not admissible in evidence, though
brought on record, has to be excluded from
consideration. We do not have any dispute with
the proposition of law so laid down in the
abovesaid case. However, the present one is a
case which calls for the correct position of law
being made precise. Ordinarily an objection to
the admissibility of evidence should be taken
when it is tendered and not subsequently. The
objections as to admissibility of documents in
evidence may be classified into two classes:-
(i) an objection that the document which is
sought to be proved is itself inadmissible in
evidence; and (ii) where the objection does not
6
AIR 1966 SC 1457
7
2003 (4) R.C.R. (Civil) 705
8
(2004) 7 Supreme Court Cases 107
9R/SCr.A/2349/2018 (Also see “Muhammad Aslam and another Versus Mst.
Sardar Begum alias Noor Nishan” (1989 SCMR 704)
dispute the admissibility of the document in
evidence but is directed towards the mode of
proof alleging the same to be irregular or
insufficient. In the first case, merely because a
document has been marked as 'an exhibit', an
objection as to its admissibility is not excluded
and is available to be raised even at a later
stage or even in appeal or revision. In the
latter case, the objection should be taken
before the evidence is tendered and once the
document has been admitted in evidence and
marked as an exhibit, the objection that it
should not have been admitted in evidence or
that the mode adopted for proving the
document is irregular cannot be allowed to be
raised at any stage subsequent to the marking
of the document as an exhibit. The later
proposition is a rule of fair play. The crucial
test is whether an objection, if taken at the
appropriate point of time, would have enabled
the party tendering the evidence to cure the
defect and resort to such mode of proof as
would be regular. The omission to object
becomes fatal because by his failure the party
entitled to object allows the party tendering
the evidence to act on an assumption that the
opposite party is not serious about the mode
of proof. On the other hand, a prompt
objection does not prejudice the party
tendering the evidence, for two reasons:
firstly, it enables the Court to apply its mind
and pronounce its decision on the question of
admissibility then and there; and secondly, in
the event of finding of the Court on the mode
of proof sought to be adopted going against
the party tendering the evidence, the
opportunity of seeking indulgence of the
Court for permitting a regular mode or
method of proof and thereby removing the
objection raised by the opposite party, is
available to the party leading the evidence.
Such practice and procedure is fair to both
the parties. Out of the two types of objections,
referred to hereinabove, in the later case,
failure to raise a prompt and timely objection
amounts to waiver of the necessity for insisting
on formal proof of a document, the document
itself which is sought to be proved being
admissible in evidence. In the first case,
acquiescence would be no bar to raising the
objection in superior Court.”
(Emphasis supplied)
10.
The Supreme Court of Pakistan, in the recent
past, has repeatedly observed that receiving of any
document, in without oath statements of learned advocates
and then marking them as exhibits, deprives the opponent
party from their right to cross-examine as to the documents
in question10. The documents which are marked as exhibits
during without oath statement of the learned advocates who
otherwise have no concern with such documents and the
same are kept on record in violation of Qanun-e-Shahadat
Order, 1984 (the „QSO‟), after the suitable or permissible
stage of trial / case till the litigants can take step to cure the
defect, can result into possibility to prejudice the interest of
the parties to the suit.
11.
The learned counsel for the petitioner has also
relied upon “Malik Riazullah” case (supra). He stated that
the learned Islamabad High Court has already observed that
10(i) Rustam and Others Versus Jehangir (Deceased) through LRs. (2023
SCMR 730)
(ii) Mst. Akhtar Sultana Versus Major Retd. Muzaffar Khan Malik through
his legal heirs and others (PLD 2021 Supreme Court 715).
(iii) “Manzoor Hussain (deceased) through L.Rs. Versus Misri Khan”(PLD
2020 Supreme Court 749)
no provision to de-exhibit is available in the Code and orders
to de-exhibit are alien to the Code, thus, the legislature has
not envisaged removing of documents from the record. It is
concluded by the learned Islamabad High Court that since
marking of a document as an exhibit does not debar the other
party from objecting admissibility at later stage, it is,
therefore, axiomatic that admitting a document in evidence
does not determine its evidentiary value nor does its
admissibility attain finality. Paragraph No. 12 of this
judgment reads as under:-
“12. The learned counsel for the
Petitioner has laid great stress on Rule 3 of
Order XIII of the C.P.C. in support of his
contention that the learned trial Court is vested
with the power to de-exhibit documents or, in
other words, have them altogether removed
from the record after they have been received
in evidence and marked as exhibits. Such
documents may become part of the record
though the question of their evidentiary value
remains open to challenge. The expression 'de
exhibit' is not defined nor mentioned in the
C.P.C. The above discussed provisions refer to
the expressions 'receive' or 'produce'. Rule 3 of
Order XIII, refers to the rejection of irrelevant
or inadmissible documents. The scheme of the
above mentioned provisions and the legislative
intent does not envisage the removing of
documents from the record after they have
been received or allowed to be produced and
thereafter marked as 'exhibits' except under
Rule 9 of Order XIII. There is no provision in
the C.P.C. for removing a document from the
record which has been marked as an 'exhibit'.
De exhibiting or removing from the record of
the trial Court is alien to the provisions of the
C.P.C. As already noted, merely receiving a
document and making it part of the record
does not give finality to its evidentiary value
and, therefore, by no stretch of imagination
does it prejudice the right to a fair trial. The
provisions of the C.P.C. are tools for ensuring
a fair trial. If documents were allowed to be de
exhibited then, despite not causing prejudice to
the other party, it would be used for delaying
adjudication of the suit. This definitely would
have provided an opportunity to delay the
proceedings besides the exercise being futile.
Rejection of documents under Rule 3 Order
XIII of C.P.C. is before receiving or marking
them as exhibits. The expression 'de exhibit' or
power vested in the trial Court in this regard
would be reading in the C.P.C. something not
provided therein by the legislature.”
Almost same view was later adopted by this Court in
“Muhammad Arif and Others” case (supra).
12.
Here I would like to advert to some orders, in
the present case, passed by the learned trial Court. On
21.06.2023, statement of the learned counsel for the
petitioner was recorded in which the documents were
allocated numbers (Ex.PA-1 to Ex.PA-29). This statement
was stamped and signed by the learned Court. It is observed
that part of the record where this statement of the learned
counsel for the petitioner is recorded does not reflect that the
same was recorded in the presence of the learned counsel for
the respondents. The learned revisional Court has also
gathered from the proceedings that when the statement of the
learned counsel for petitioner was recorded and documents
were marked as exhibits, the other side was not present.
Though the following order of the same date of hearing
reflects that learned advocates for all the parties were
present:-
"126..61.12 وکلسن رفنیقی احرض
زابینو داتسوزیی اہشدت دمہیع دنبملق وہ یکچ ےہ اب لسم رباےئ اہشدت
دماعہیلع رقتبر 326..63.32 وک شیپ وہوےئ۔
انسای ایگ۔
Sd/-
Civil Judge 1st Class,
Sialkot”
Nevertheless on 27.06.2023, without causing
material delay and prior to further progress in the suit, an
application to de-exhibit the above referred documents was
filed by the respondents. After contest on this application,
the learned trial Court passed the following order:-
" 19.10.2023 وکلسن رفنیقی احرض ثحب رب دروخاتس امس تع دش۔
ںیہ۔ ذہلا دروخاتس ذتمرکہ وظنمر یک اجیت ےہ
اجےت ےیکde-exhibit EXA29 ےسEXA1
plausible
ی شکردہ
ارتعااضت اسلئ
اورداتسوزیاتپ
ںیہ۔ آدنئہ لسم رباےئ اہشدت وسمل ہیلع رقتبر 21.10.2023 شیپ
وہوے۔
انسای ایگ۔
Sd/-
Civil Judge 1
13.
Noticeably, the above orders have been passed
without proper application of judicial mind and with no
deliberation as to the discussed law. Examination of
judgments on the subject reveals that permitting documents
to be brought on record / marking them as exhibits, through
without oath statements of learned advocates, can cause
damage to the interest of litigants. It is the duty of the Courts
to adhere to the above settled law. In “Muhammad Akram
and another Versus Mst. Farida Bibi and Others”11 the
Supreme Court observed that the Court is duty bound to look
into the document produced on record. It is also a settled
law that even if no objection was taken by the other side
when the document was exhibited the Court has not
prevented from adjudicating its nature, where it is valid or
not, or where it is fake or not. The above duty as well as the
law settled by the learned Islamabad High Court in “Malik
Riazullah” case (supra) and this Court in “Muhammad Arif
and Others” case (supra) has been ignored.
14.
The learned revisional Court though noticed
that the learned trial Court acted in purely mechanical
manners but without looking into the record and appreciating
stage of the case proceeded to uphold the decision of the
learned trial Court. The trial is in progress in consequence of
the application under section 12(2) of the Code, wherein exparte judgment and decree dated 20.04.2016 is sought to be
set-aside. Record reflects that some of the documents,
112007 SCMR 1719
Writ Petition No. 10608 of 2024 (Judgment)
Writ Petition No. 10609 of 2024
Writ Petition No. 10611 of 2024
16
brought on record (as Ex.PA-1 to Ex.PA-29), were also
relied by respondents No. 2 and 3 in their suit and when they
obtained the ex-parte judgment. Besides other documents
(Ex.PA-9 to Ex.PA-12), the death certificates issued on
29.07.2015 was produced by the respondents to secure the
ex-parte judgment and decree. Ex.PA-13 to Ex.PA-17 were
also brought on record by the respondent-side in their suit.
There are some other documents that have been ordered to
be de-exhibited, which are part of the judicial file of the
main suit. It looks that respondent-party relied on such
documents as well.
15.
It is the claim of the petitioner in her
application under section 12(2) of the Code that ex-parte
judgment and decree is passed on the basis of bogus death
certificates. It is also claimed that Mst. Nusrat daughter of
Ferozdin was reflected as defendant No. 8 in the main suit
(instituted in the year 2014), whereas, Mst. Nusrat passed
away in the year 2012. The process of adducing evidence of
the defendants of application under section 12(2) of the
Code (present respondents) has not yet started. In “Khurshid
Ali and 6 Others Versus Shah Nazar”12 it is observed that
Courts are not only to sit and watch as to who commits a
mistake and who does not commit a mistake, from amongst
the litigants and one who commits a mistake should be
deprived of the right claimed. I would like to reproduce the
following paragraph of the said judgment:-
12PLD 1992 Supreme Court 822
Writ Petition No. 10608 of 2024 (Judgment)
Writ Petition No. 10609 of 2024
Writ Petition No. 10611 of 2024
17
“It is incorrect to think now under an
Islamic dispensation that the Courts are only
to sit and watch as to who commits a mistake
and who does not commit a mistake, from
amongst the contesting litigants, and one who
commits a mistake in procedural matters
should be deprived of the right claimed; even if
he is entitled to it. This Court has not approved
of such like practice. (See Muhammad Azam v.
Muhammad Iqbal PLD 1984 SC 95). In this
case even if the application had not been
pressed “so called”; if it was necessary for
just decision of the case, as held by the High
Court (to summon the material relied upon by
the appellants side), it should have been
summoned and treated as evidence in the
matter without any formalities. And mere
failure to exhibit a document formally would
not make any difference.”
16.
Prejudice must not be caused to the litigants
because of any mistake of the Courts though the litigants
and their learned counsel are also required to be vigilant.
The order-sheet of the learned trial Court and the
observation of the learned revisional Court regarding the
presence of learned counsel for the respondent, at the time
when the documents were marked as exhibits, are also at
variance. Order dated 21.06.2023 reflects that this order
was passed in the presence of all the parties. Learned
counsel for the respondents stated that his attendance is
incorrectly marked as evident from part of the record where
the statement producing documents is recorded. The learned
revisional Court, as already discussed above, has gathered
from the circumstances of the case that the respondent side
was not present when the documents were marked as
Writ Petition No. 10608 of 2024 (Judgment)
Writ Petition No. 10609 of 2024
Writ Petition No. 10611 of 2024
18
exhibits. Nevertheless, it is clear from the record that the
respondents have raised objection before any further step in
the progress of the case. Orders to exhibit and then to deexhibit have been passed not merely ignoring the Code and
the QSO but at the same time the repeated observation of
the Honourable Supreme Court of Pakistan as well as this
Court in various cases including “Rustam and Others”,
“Mst. Akhtar Sultana” and “Manzoor Hussain (deceased)
through L.Rs.” (supra) clearly disapproving the trend of
permitting the learned advocates to exhibit the documents,
in their without oath statements, has been overlooked. It
will not be out of place to once again observe that these
judgments contain clear guidelines for the learned Courts
below as to the proper procedure and practice required to be
adopted in course of trial vis-à-vis bringing the documents
on record. Ignoring them by the litigants or by the learned
Courts is not just resulting into unnecessary delays but at
the same time it can cause miscarriage of justice.
17.
The orders to exhibit and then to de-exhibit the
documents have been passed in haste, which is also ignored
by the learned revisional Court. As already discussed in
detail that the trial in pursuance to the application under
section 12(2) of the Code is still at the stage when the
mistake can be cured. In case titled “Jodhpur Gums &
Chemicals Pvt. Ltd. Versus Punjab National Bank and
Ors”13 the mistake was allowed to be cured by recalling the
13AIR 1999 Rajasthan 38
Writ Petition No. 10608 of 2024 (Judgment)
Writ Petition No. 10609 of 2024
Writ Petition No. 10611 of 2024
19
relevant witness(s). In case titled “N.M.S. Sadasivier
Krishnier and Others Versus T.S. Meenakshi Iyer and
Others”14
it is held that it is wrong to commence judgment
before completing the matters of admitting documents,
unless the exceptional circumstances do exist. Considering
the peculiar facts and circumstances of the case, I am of the
view that the learned revisional Court should have proceeded
to exercise its jurisdiction to avoid the clear possibility of
miscarriage of justice or likely prejudice to the interest of the
parties, by giving opportunity to cure mistake instead of
simply upholding the orders of the learned trial Court.
18.
In view of the above discussions, orders of the
learned trial Court marking the aforesaid documents as
exhibits through without oath statement of learned advocate
and then order to de-exhibit them as well as judgment dated
29.01.2024 are set-aside. The petitioner can file a suitable
application to produce further evidence / documents or reexamination of any witness. The learned trial Court to give
chance to the respondent-side to cross-examine as to
additional evidence, if produce. The learned trial Court shall
not allow any undue adjournment to produce witness or
documents and this process is expected to be completed
within forty five working days from the receipt of this
judgment. Any undue adjournment or hindrance in the
progress of the case, by either side, shall carry the
consequence as provided in law.
14A.I.R. 1933 Madras 781
Writ Petition No. 10608 of 2024 (Judgment)
Writ Petition No. 10609 of 2024
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19.
The present petition as well as the connected
petitions are allowed in the above terms.
(Sultan Tanvir Ahmad)
Judge
Announced in open Court on 13.08.2024.
Approved for reporting
Judge