IN THE COURT OF RAI EJAZ IMTIAZ,

LEARNED CIVIL JUDGE 1ST CLASS, LAHORE.

IN RE:

M/S. OHIO EXPORT COMPANY. VS. ZAM ZAM TRADERS.

REPLY ON BEHALF OF DEFENDANT TO NOTICE TO PRODUCE

DOCUMENTS UNDER ORDER XI RULE 16 CPC IN COMPLIANCE WITH
ARTICLE 77 OF QANUN-E-SHAHADAT ORDER, 1984.

Respectfully Sheweth:

LEGAL OBJECTION

1) That the Notice to produce documents under reply is not lawful and not
maintainable under law as under:

a. It may respectfully be submitted that the Rule 16 of the

Order XI CPC (Reproduced below) itself provides that the Notice to
any party to produce any documents can be given to any opposing
party in respect of only such documents referred to by the
opposing party in his pleading or affidavits and such notice shall
be in Form No.7 in Appendix-C to CPC with such variations as
circumstances may require:
Rule-16: Notice to any party to produce any documents
referred to in his pleading or affidavits shall be in Form No.7
in Appendix C, with such variations as circumstances may
require.

The wording of Form No.7 in Appendix C to CPC (Also

reproduced below) also provides that the notice is to be given to the
plaintiff or defendant requiring it to produce for inspection of the
party giving notice the documents referred to in plaint or written
statement or affidavit of the party to whom notice is given,

FORM No.7. NOTICE TO PRODUCE DOCUMENTS

Take notice that the [plaintiff or defendant] requires you to
produce for his inspection the following documents referred to in
your [plaint or written statement or affidavit, dated the___ day of
19__.
 [Describe documents required]
(X.Y. Pleader for the
To Z. Pleader for the

b. Needless to mention here that the most relevant rule

applicable in this respect is Rule 15 of the Order XI CPC. The said
Rule 15 of the Order XI CPC quoted below also provides that a
party to a suit shall be entitled at any time to give notice to any
other party, in whose pleadings or affidavits reference is made to
any document, to produce such document for the inspection of the
party giving such notice, or of his pleader, and to permit him or
them to take copies thereof. Accordingly, under the Rule 15 of the
Order XI Rule which is the governing rule of law also restricted
issuance of Notice to Produce documents to opposing party only in
respect of such documents which have been referred to by the
opposing party in his plaint. Notice to any party to produce any
documents can be given to any opposing party in respect of only
such documents referred to by the opposing party in whose
pleadings or affidavits reference is made to such document
15. Every party to a suit shall be entitled at any time to
give notice to any other party, in whose pleadings or
affidavits reference is made to any document, to
produce such document for the inspection of the party
giving such notice, or of his pleader, and to permit him
or them to take copies thereof; and any party not
complying with such notice shall not afterwards be at
liberty to put any such document in evidence on his
behalf in such suit unless he shall satisfy the Court
that such document relates only to his own title, he
being a defendant to the suit, or that he had some other
cause or excuse which the Court shall deem sufficient
for not complying with such notice, in which the
Court may allow the same to be put in evidence on
such terms as to costs and otherwise as the Court shall
think fit.

c. That applicant/plaintiff intentionally did not refer to the

most important and relevant Article 76 of Qanun-e- Shahadat
Order, 1984. The aforesaid Article, inter alia, provides secondary
evidence of only such document can be given when the original
thereof 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 the document is in possession of a person legally who is
bound to produce it and after the notice mentioned in Article 77 of
 the Order ibid such person does not produce it and or of any person
legally bound to produce it, and when after the notice mentioned in
Article 77 such person does not produce it.

2) That it would not be out of place to mention here that in para 4 of the
plaint, the plaintiff has itself referred to all three sets of documents but the
answering defendant, on the other hand, in the corresponding para of the
written statement being para 4 of reply on merits had totally denied not
only the execution but also furnishing by it or acceptance by it of such
documents. The defendant/respondent has also denied to have entered
into any such alleged transaction with the plaintiff allegedly entered
through the documents mentioned in para 4 of the plaint. It may further
be noted that the plaintiff neither relied upon nor mentioned the said
documents required to be produced in its list of reliance under Order VII
Rule 14 CPC and list of documents under Order XIII rule 1 CPC attached
with the plaint. It is further added that the plaintiff has attached with the plaint
some of documents and the perusal whereof established that the same have not
been executed by the defendants. Therefore, in accordance with the aforesaid
provisions of law, notice under reply is not maintainable as such notice
cannot be given to the defendant/respondent as the documents required
to be produced were not referred to by the respondent/defendant, either
in its pleading including written statement or any affidavit filed in the
Court rather the defendants have denied the said documents in written
statement.

REPLY ON MERITS.

1. The contents of corresponding para are vehemently denied being

misleading, vague and incorrectly stated. It is denied that the documents
required to be produced were either executed or furnished or accepted by
the defendant. The defendant never entered into any alleged commercial
transactions with the plaintiff either through the documents required to be
produced or otherwise. For the reason stated in the Legal Objection above,
the contents whereof are reiterated. Notice to produce Documents is liable
to be rejected/dismissed.

On account of what has been stated hereinabove, it is most

respectfully prayed that the notice under reply may kindly be

rejected/dismissed with costs, in the interest of justice.

 Any other relief which this honorable court deems fit and necessary,

under the circumstances of the case, may also be granted.

ANSWERING DEFENDANT

THROUGH :

SHAHID IKRAM SIDDIQUI

Advocate Supreme Court of Pakistan
9-G, Mushtaq Ahmad Gurmani Road,
Gulberg-II, Lahore

RAO ATHAR AKHLAQ MUHAMMAD FAIZAN SALEEM

Advocate High Court Advocate

(Faizan-Apr/17)
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;
(b) when the existence, condition or contents of the original have been proved to
be admitted in writing by the person against whom it is proved or by his
representative-ininterest;
(c) when the original has been destroyed or lost, or when the party offering
evidence of its contents cannot, for any other reason not arising from his own
default or neglect, produce it in reasonable time ;
(d) when, due to the volume or bulk of the original, copies thereof have been
made by means of microfilming or other modern devices ;
(e) when the original is of such a nature as not to be easily movable ;
(f) when the original is public document within the meaning of Article 85 ;
(g) when the original is a document of which a certified copy is permitted by this
Order, or by any other law in force in Pakistan, to be given in evidence ;
(h) when the originals consist of numerous accounts or other documents which
cannot conveniently be examined in Court, and the fact to be proved is the
general result of the whole collection ;
(i) when an original document forming part of a judicial record is not available and
only a certified copy thereof is available, certified copy of that certified copy shall
also be admissible as a secondary evidence.
In cases (a), (c), (d) and (e), any secondary evidence of the contents of the
document is admissible.
In case (b), the written admission is admissible.
In case (f) or (g), certified copy of the document, but no other kind of secondary
evidence, is admissible.
In case (h), evidence may be given as to the general result of the documents by
any person who has examined them and who is skilled in the examination of
such document.
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 ease in which the Court
thinks fit
to dispense with it: —
(1) when the document to be proved is itself a notice ;
(2) when, from the nature of the case, the adverse party must know that he will
be
required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession
of the
original by fraud or force ;
(4) when the adverse party or his agent has the original in Court ;
(5) when the adverse party or his agent has admitted the loss of the document ;
(6) when the person in possession of the document is out of reach of, or not
subject to, the
process of the Court.
15. Every party to a suit shall be entitled at any time to give notice to any other
party, in whose pleadings or affidavits reference is made to any document, to
produce such document for the inspection of the party giving such notice, or of
his pleader, and to permit him or them to take copies thereof; and any party not
complying with such notice shall not afterwards be at liberty to put any such
document in evidence on his behalf in such suit unless he shall satisfy the Court
that such document relates only to his own title, he being a defendant to the suit,
or that he had some other cause or excuse which the Court shall deem sufficient
for not complying with such notice, in which the Court may allow the same to be
put in evidence on such terms as to costs and otherwise as the Court shall think
fit.
16. Notice to any party to produce any documents referred to in his pleading or
affidavits shall be in Form No.7 in Appendix C, with such variations as
circumstances may require.
17. The party to whom such notice is given shall, within ten days from the receipt

of such

notice, deliver to the party giving the same a notice stating a time within three

days from

the delivery thereof a which the documents, or such of them as he does not

object to

produce, may be inspected at the office of his pleader, or in the case of bankers'

books or

other books of account or books in constant use for the purposes of any trade or

business,

at their usual place of custody, and stating which (if any) of the documents he

objects to

produce

, and on what ground. Such notice shall be in Form No.8 in Appendix C, with

such variations as circumstances may require.

18.-(1) Where the party served with notice under rule 15 omits to give such

notice of a

time for inspection or objects to give inspection, or offers inspection elsewhere

than at

the office of his pleader, the Court may, on the application of the party desiring it

make
an order for inspection in such place and in such manner as it may think fit:

Provided that

the order shall not be made when and so far as the Court shall be of the opinion

that it is

not necessary either for disposing fairly of the suit or for saving costs.

(2) Any application to inspect documents, except such as are referred to in the

pleadings,

particulars or affidavits of the party against whom the application is made or

disclosed in

his affidavit of documents, shall be founded upon an affidavit showing of what

documents inspection is sought, that the party applying is entitled to inspect them

and

that they are in the possession or power of the other party. The Court shall not

make such

order for inspection of such documents when and so far as the Court shall be of

opinion

that it is not necessary either for disposing fairly of the suit or for saving costs.
NO 7. NOTICE TO PRODUCE DOCUMENTS

(Title as in No. I supra)

Take notice that the [plaintiff or defendant] requires you to produce for his inspection the

following documents referred to in your [plaint or written statement or affidavit, dated

the___ day of 19__.

[Describe documents required]

(X.Y. Pleader for the

To Z. Pleader for the

16. Notice to any party to produce any documents referred to in his pleading or affidavits
shall be in Form No.7 in Appendix C, with such variations as circumstances may require.