Saad Muhammad Abbasi vs Syed Ejaz Ali O — 2024 CLD 1099 ISLAMABAD

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Saad Muhammad Abbasi VS Syed Ejaz Ali O. XXXVII, Rr.1 & 2---Qanun-e-Shahadat (10 of 1984), Arts. 76 & 77---Suit for recovery on the basis of cheque---Secondary evidence, adducing of---Conditions---Trial Court decreed the suit against the defendant / appellant---Record revealed that the plaintiff / respondent, as documentary evidence, exhibited photocopies of the documents (the agreement, bank deposit slip, Bank Statements, the cheque and dishonor slip)---Documents must be proved by primary evidence---In certain cases, the documents can be proved through the secondary evidence in terms of Art. 76 of the Qanun-e-Shahadat, 1984 ('the Order 1984')---Secondary evidence is an exception to general rule and only meant for the purpose to cater to a genuine need and hardship---It is not to be allowed in routine or without complying with the requirements mentioned under Arts. 76 & 77 of the Order 1984---Contents of the documents can only be proved through secondary evidence if the conditions mentioned under Art. 76 of the Order 1984 are available which should be satisfied first---Said Article provides an alternate mode and method of proving the documents which for various reasons could not be produced---When primary evidence is not available or produced, Law permits secondary evidence which remedy is designed for the protection of person, who despite best efforts is unable, from the circumstances beyond his control, to produce the primary evidence---Where a person is unable to bring the original documents despite reasonable efforts, the Court is competent to admit secondary evidence but at the same time, it should be kept in mind that the said benefit is not intended fora person who intentionally or with some ulterior motive or sinister objects, refuses to produce the documents in court which is in his possession, power or control--- 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 the parameters contained in Art. 76 of the Order 1984 and facts and circumstances of each case as secondary evidence is given to prove the existence, contents of documents and nothing more---Impugned judgment on the face of it was short of pre-requisites on the subject---High Court set-aside the impugned ex-parte judgment and decree, and remanded the case to the Trial Court for decision on merits with the direction that the application for leave to appear and defend the suit filed by the appellant/defendant would be deemed to have been allowed on the basis of surety bond having been tendered before the High Court/Appellate Court---Appeal, filed by the defendant, was allowed accordingly.

Saad Muhammad Abbasi vs Syed Ejaz Ali O — 2024 CLD 1099 ISLAMABAD

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