Suit No.B-22 of 2003
For hearing of CMA No.1910/2013
M/s.Azmat Trading Co.(Pvt) Ltd ………….Plaintiff
NDLC- IFIC Bank Limited .………Defendant
Dates of hearing 21.05.2013
Mr.Kamal Azfar, Advocate for the Plaintiff
Mr.Nabeel Kolachi, Advocate for the defendant
Muhammad Ali Mazhar, J: The plaintiff has brought this application under Article 76 read with Article 77 of the Qanun-e-Shahadat Order, 1984 for permission to produce secondary evidence.
2. The learned counsel for the plaintiff argued that original documents attached to the affidavit in evidence of Mr.Hafeez Azmat, witness for the plaintiff are either in possession and power of the International Finance and Commerce Bank Ltd. and or Azmat Bangladesh Ltd. Incorporated in Bangladesh. He further argued that said companies are outside the reach of the plaintiff and are not subject to the process of this court being incorporated and having their Registered Office in Bangladesh, hence he prays that the plaintiff may be permitted to produce copies of the documents attached with the affidavit in evidence of Mr.Hafeez Azmat in secondary evidence.
3. Conversly, the learned counsel for the defendant argued that the plaintiff has wrongly relied upon the provisions of Article 76 and 77 and also concealed the material facts. The affidavit in evidence of the plaintiff was filed in the month of April, 2009 but no application for production of secondary evidence was filed. He referred to the orders dated 1.10.2009 and 16.10.2009 wherein the counsel for the plaintiff along with his witness were present and made statement that the original documents were not brought by the witness and, therefore, adjournment was sought. The plaintiff produced copies of the documents which are annexed along with affidavit in evidence upon which the court directed that the originals be produced. The learned counsel also referred to the counter affidavit in which each document has been pointed out separately. Main objection is that affidavit-in-evidence was filed in the month of April, 2009 but no application was moved and now in the year 2013, present application has been moved which is belated. Learned counsel further submits that Memorandum of Settlement dated 20.03.2003 between UBL and Azmat Trading Company should have been in the possession of the plaintiff to which learned counsel for the plaintiff submits that original documents in relation to such MOU with UBL or mentioned in the affidavit-in-evidence will be produced in original except those for which application has been made for producing secondary evidence.
4. Heard the arguments. In the counter affidavit, the authenticity of photocopies of documents has not been questioned nor this aspect has been challenged that documents are not in possession of the plaintiff nor it is challenged that the person against whom the document is sought to be proved, or of any person is not out of reach of, or is subject to the process of the Court, but the main objection is that application has been moved to delay the proceeding. Article 74 of the Qanun-e-Shahadat Order, 1984 defines secondary evidence and what it includes. The Secondary evidence means and includes certified copies, copies made from original by mechanical process, copies made from or compared with the original, counterparts of documents as against the parties who did not execute them and oral accounts of the contents of a document given by some person who has himself seen it. The documents must be proved by primary evidence but in certain cases the same can be proved by secondary evidence as enumerated under Article 76. Where existence of original document is not in issue and the same is not found available, the only course is to allow the party to lead secondary evidence. In case primary evidence is not found available with the party then recourse could be made to prove the documents by means of secondary evidence as required to be proved under Article 74 of Qanun-e-Shahadat Order, 1984
5. Article 74 deals and defines the mode of secondary evidence while Article 76 provides the cases and circumstances in which secondary evidence may be given. Whereas Article 77 explicate rules as to notice to produce. For ready reference, relevant excerpts from Article 76 and 77 of the Qanun-e-Shahadat Order, 1984 are reproduced as under:-
“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;
In cases (a), (c), (d) and (e), any secondary evidence of the contents of the documents is admissible.
77. Rules as to notice to produce. 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 secondary evidence has previously given to the party 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.
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:-
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.
6. The secondary evidence is an exception to general rule and only meant for the purpose to cater a genuine need and hardship. It is not to be allowed in routine or without complying with the requirements mentioned under Article 76 and 77 of Qanun-e-Shahadat Order, 1984. The contents of documents can only be proved through secondary evidence if the conditions mentioned under Article 76 are available which should be satisfied first. This Article provides an alternate mode and method of proving the document which for various reasons could not be produced. When primary evidence is not available or produced, then law permits secondary evidence which remedy is designed for the protection of person who despite best efforts unable from the circumstances beyond his control to produce the primary evidence. Where a person is unable to bring the original document despite all reasonable efforts, the court is competent to admit secondary evidence but at the same time, this should also to be kept in mind that this benefit is not intended for a person who intentionally or with some ulterior motives or sinister objects refused to produce the document in court which is in his possession, power and control. The court is competent to determine whether sufficient ground has been made out or not for the admission of secondary evidence which discretion is to be exercised keeping in view the parameters and dynamics laid down in Article 76 and the facts and circumstances of each case as secondary evidence is given to prove the existence, condition, or contents of document and nothing more beyond that.
7. Under Article 77 of Qanun-e-Shahadat Order, 1984, secondary evidence of the contents of document shall not be allowed unless the party proposing to give such secondary evidence is previously given to the party in whose possession or power the document is or to his advocate such notice to produce it as prescribed by law. The main purpose of filing this application by the plaintiff is that International Finance and Commerce Bank and or Azmat Bangladesh Ltd. are outside the reach of the plaintiff and are not subject to the process of this Court which fact has not been disputed or denied by the defendant. Taking into consideration the facts and circumstances of the case in hand, I feel no hesitation in my mind to hold that the plaintiff has made out a prima facie case and deserve the permission to lead secondary evidence. So far as the prior notice is concerned the same is not required bearing in mind the proviso No.6 of Article 77 of Qanun-e-Shahadat Order, 1984 which provides that notice shall not be required in order to render secondary evidence admissible when the person in possession of document is out of reach of, or not subject to, the process of the court.
8. As a result of above discussion, this application is allowed. Let photocopies of documents attached with affidavit-in-evidence be produced and exhibited in secondary evidence. Application is disposed of.