Memo on Execution of Documents

Case Laws:

2015 MLD 1358 R.F.A. 168 of 2010 Double Bench

LAHORE
Ali Mansoor Raza vs. Ejaz Hussain and others

FACTS → Plaintiff challenged the judgement passed by the Civil Judge 1st Class, Multan, whereby the suit for
pre-emption filed by the appellant/plaintiff has been dismissed. Cross objection has also been filed by the
respondents. The record showed that all receipts of notices of Talb-e-Ishhad were available, but the same did not
have an endorsement with exhibit numbers, and no mark of exhibition was available on the receipts. The court,
while deciding the suit, referred to the documents as exhibited ones. Such a defect was fatal. The high court
ordered a fresh trial. Appeal was allowed.

HELD at A p. 1359 → No mark of exhibition is available on receipts. Material irregularity has been
committed by the trial court while recording the evidence, and the court, while deciding the suit, has referred to
these documents as exhibits, despite the fact that no mark of exhibit is available on the envelopes of registered
letters allegedly sent to the defendants as well as the receipts of post office issued for registered letters. This
defect is fatal.

2017 CLD 1122 Insurance Appeal No. 905 of 2013 Double Bench
LAHORE
Naeem Tufail vs. Jubilee Insurance Company Ltd. and another

FACTS → Appellant challenged the judgement of Addl. Dist. J-I (Insurance Tribunal Punjab), whereby the
application filed by appellant for the reclamation of insurance claim of Rs. 4.92.00/- along with mark-up has
been dismissed. Two survey reports against the claim of the appellant were produced before the trial court,
which was the basis for the dismissal. The appellant pleaded that without producing the authors of reports, there
is no authenticity to these documents under O13-R1(3). Appeal was dismissed.

HELD at A p. 1125 → Although the production of documents and admission are two different subjects,
documents could be produced as evidence, which was always subject to admission as required under Art. 78 of
QSO, 1984. The courts are vested with the authority and jurisdiction to ascertain the genuineness and
authenticity of any document in order to arrive at a just and fair conclusion. In such controversies, the Supreme
Court laid down the principle that when the document has been exhibited in evidence without any objection by
the opposite party, the same is to be deemed to have been proved in all respects. It is the required objection as to
the authenticity of proof to be taken at earlier stage and once the document is admitted in evidence, objection
against document cannot be allowed at any subsequent stage, as per laid down by the Supreme Court in case
reported as “Ch. Muhammad Saleem v. Muhammad Akram and others” (PLD 1971 SC 516)

The Supreme Court, in its latest view, laid down the principle in the case reported as “Muhammad
Iqbal v. Mehboob Alam” (2015 SCMR 21)
 “O13-R1(3) — QSO, Art. 72 — Document taken in evidence — No objection by defendant
regarding admissibility and proof of such document — Effect — Such document would validly form
part of Plaintiff’s eevidence,and defendant shall be considered to have waived his right to resist the
mechanics of the proof thereof.”

PLJ 2014 Lahore 28 C.R. 2907 of 2012 Single Judge LAHORE

Muhammad Fayyaz (deceased) through LRs etc
vs.
Saeed Ahmed (deceased) through LRs etc

FACTS → Suit for specific performance of an executary contract of sale was decreed in favour of respondents,
which was challenged by petitioners before the District Judge. The petitioners applied under Order XLI, Rule 27
of CPC, for the production of record of the stamp vendor and petition writer, upon which statedly agreement to
sell was written. The said application was declined. Petitioners, in their written statement, specifically alleged
that the property was leased out and that the lease period has been terminated. In order to fill gaps and lacunas in
the lis, an application for additional evidence was accepted, and a petition was allowed.

HELD at para 3 p. 30 → O41-R27 can be pressed into service on the following grounds (1) improper refusal
of the trial court to admit documents; (2) appellate court feeling the necessity of admission of documents to
enable it to pronounce judgment; and (3) for any other substantial cause, one of the grounds mentioned in 27(1).

HELD at A p. 30 → Mere omission on the part of the petitioners to make an application before the trial court,
as argued by the respondents, would not be sufficient to non suit the petitioners.

HELD at B p. 30 → It is the case of the petitioners that, in fact, no executory contract of sale was executed
between the adversaries, and it was a lease agreement. Documents sought to be produced at the instance of the
petitioners in order to substantiate their contention are “substantial cause”.