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Petitioner: ARIF HASHWANI and 3 otherss VS Respondent: SADRUDDIN HASHWANI and 3 others
Court Name: Sindh High Court Judge(s): Khilji Arif Hussain Title: ARIF HASHWANI and 3 otherss vs SADRUDDIN HASHWANI and 3 others Case No.: Suit No,1001 of 2004 and C.M.As. Nos.600, 601, 1177, 1360 and 1361 of 2007 Date of Judgment:2007-04-27 Reported As: PLD 2007 Karachi 448 Result: Applications dismissed
Judgment ORDER KHILJI ARIF HUSSAIN, J.---By an application under Order XIV(2) read with section 151, C.P.C. The defendant requested that issues Nos. 1, 2, 3 and 13 be heard and decided as legal issues in the first instance while decision on other factual issues be postponed. It was further requested that issue No,13 be heard and decided as preliminary issue, prior to issues Nos. 1, 2 and 3 as the decision on this issue is crucial for further progress in the matter. Another application under section 151, C.P.C. (C.M.A. No,601 of 2007) was filed by the defendant praying that the learned Commissioner Mr. Justice (Retd.) Saleem Akhtar may be directed not to permit the playing of video recordings/tape-recordings/audio compact discs or introduction of transcripts during the cross-examination of defendant No,1 pending the decision on the issue of admissibility of such recordings under Article 164 of the Qanun-e-Shahadat Order, 1984. Defendant No,3 also filed application under Order XIV(2) read with section 151, C.P.C. (C.M.A. No,1360 of 2007) praying to decide issue No,13 as a preliminary issue and issues Nos. 1, 2 and 3 as legal issues. Notices were issued to the learned counsel for the plaintiffs, counter-affidavits and rejoinder affidavits have been filed by the respective parties. Heard M/s Iqbal 'Qazi and Liaquat Merchant, learned counsel for defendant No,1, Mr. Zahid F. Ebrahim, learned counsel for defendant . No,3, Miss Sana Minhas, learned counsel for plaintiff. No,2 and Mr. Adnan Chaudhry, learned counsel for plaintiff No,1. Brief facts for the purpose of deciding listed applications are that on 10-9-2004, the plaintiffs filed suit for declaration that they are shareholders of 1/3rd shareholding of total paid-up capital of defendant No,2 and that defendant No,1 is a trustee for all intents and purposes of the shareholders including the plaintiffs for all the nominees of defendant No,2 and further sought declaration that the extraordinary general meeting scheduled for 14-9-2004 for removal of plaintiffs Nos. 1 and 2 as directors, as illegal and mala fide. On 3-6-2005 consent issues were filed by the learned counsel for the parties which were accordingly adopted with direction to file documents and list of witnesses within a week. Mr. Justice (Retd.) Saleem Akhtar was appointed as Commissioner to record the evidence of the parties and the parties were directed to file affidavits-in-evidence of their respective witnesses. On 15-2-2006, an application under Order XXVI, Rules 2 and 4, C.P.C. Was filed by the plaintiff that they have filed affidavits-inevidence of foreign witnesses to whom plaintiffs proposed to examine as expert witnesses and since the said witnesses are unable to appear before the learned Commissioner in Pakistan, the learned Commissioner may be directed to record the cross-examination of said four expert witnesses at London, UK. The application was disposed of by the following consent order dated 17-3-2006: (1) By consent this application is granted on the following terms: (i) The learned counsel for the plaintiffs and the learned counsel for the defendants will cross-examine expert witnesses of respective parties, whose affidavits-in-evidence have already been filed by them; and (ii) The learned counsel for the parties can cross-examine expert witnesses and on the evidence like video-recording, tape recording, audio compact disc, transcript, etc. Filed before the learned Commissioner subject to admissibility of the said evidence, to be determined by the learned Single Judge at the time of arguments whether the said evidence is admissible in terms of Article 164 of Qanun-e-Shahadat. The video-. Recording, tape-recording, audio compact disc and transcript shall be separately marked as Exs. X- 1, X-2, etc. Till the issue about their admissibility is determined by the learned Single Judge. Office is directed to forward a copy of this order to the learned Commissioner." After recording evidence of plaintiffs and four (forensic) expert witnesses defendants witness came in the witness box and during the cross-examination the plaintiffs wanted to contradict them with the audio-recordings, marked Exh.X by the learned Commissioner, in terms of order dated 17-3-2006. The defendants tiled listed applications praying that the issue pertaining to admissibility of audio video-recording be decided first as preliminary issue.
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Apart from various issues framed by the Court, the issues, for which the defendants requested to decide as preliminary issues, read as under: (1) Whether the suit is barred by limitation and is liable to be dismissed as such? (2) Whether the plaint in suit is liable to be rejected under Order VII, rule 11, C.P.C.? (3) Whether the suit is barred in view of the decree passed in Suit No,485 of 1975? (13) Whether or not audio-tape and transcripts thereof of alleged conversations between the plaintiffs and the defendant No,1 and between the plaintiffs and defendant No,3 allegedly recorded by or under instructions of the plaintiffs are admissible in evidence? The learned counsel for the parties argued that only issue No,13 may be decided as preliminary issue. Mr. Iqbal Qazi, learned counsel for defendant No,1, vehemently argued that the audio cassette/compact disc, which plaintiffs want to produce, are inadmissible evidence and cannot be introduced during the cross-examination of defendant No, 1. It was contended by the learned counsel that video recording/tape-recording/audio compact disc can be easily manipulated and such evidence cannot be relied upon. The learned counsel contended that under Article 164 of the Qanun-e-Shahadat Order, 1984 only in such cases as court considers appropriate, the Court may allow to produce any evidence that may become available because of modern devices or techniques and not otherwise, it was next contended by the learned counsel that Article 2(c) of Order, 1984 defines "evidence" and since video/audio-recording does not fall within the definition of Article 2(c)(ii) of the Qanun-e-Shahadat Order, 1984, the same cannot be treated as evidence as required under Article 164 of the Qanun-e-Shahadat Order, 1984. It was contended by the learned counsel that term "documents" as defined under Article 2(c)(ii) of the Qanun-e-Shahadat Order, 1984 should be something in writing, which can be seen. The learned counsel while relying upon Article 140 of the Qanune-Shahadat Order, 1984 argued that only the statement made by witnesses in writing or reduced into writing and relevant to the matter in question, only such material can be produced during cross-examination to contradict the witnesses by his writing. Since audio-cassette cannot be termed as a statement in writing such recording cannot be used for the purpose of contradicting the defendants witness. The learned counsel further argued that the alleged audio cassette has been managed to create evidence in the suit before filing the same and in the affidavit in evidence filed by plaintiffs No,1 he has not mentioned about the same. Mr. Iqbal Qazi, learned Advocate for the defendants argued that on reading Article 2 with section 3(58) of General Clauses Act one can say that audio-cassette cannot be termed as "document". It was contended that original cassette has not been produced from which conversation in question was unloaded and on three different occasions the original cassettes were not produced and objected the production of the cassette in question on the ground that in the body of plaint, the plaintiffs have not disclosed any matter regarding conversation except relied upon audio-cassette. The defendant No,1 served notice under Order XI, rule 15, C.P.C. Upon the plaintiffs calling upon them to produce audio-cassettes for their inspection but plaintiffs in reply refused to produce the same and in these circumstances defendants are left with no other option but to file written statement. It was contended by the learned counsel that under Article 164 of Qanun-e-Shahadat Order, 1984, only such evidence which is procured by modern device can be produced which party himself had recorded and produced the same at an earliest opportunity and further the authenticity of which is beyond any shadow of doubt and same is required by the court. In support of his contention learned Advocate relied upon Hakim Ali Bhatti v. Qazi Abdul Hakim and others 1986 CLC 1784, Sumitra Debi Kaur v. Calcutta Dyeing and Bleaching Works, AIR 1976 Ca1.99, and Zafar Iqbal and others v. Bashir Ahmed and another PLD 1988 SC 109. Mr. Liaquat Merchant, learned Advocate for the defendant No,1, argued C.M.A.No,601 of 2007 and argued that Article 164 of Qanun-e- Shahadat Order, 1984 is in two parts first that Court has to consider at an appropriate stage whether production of evidence as contemplated under Article 164 is required to be produced and only then can allow to produce any evidence that may have become available because of modern device. Learned Advocate heavily relied upon "comma" inserted by the Legislator before words "the Court may allow" in the said Article and argued that burden is upon the Court first to satisfy that in what circumstances evidence become available because of modern device should be allowed to produce in evidence. It was contended by the learned Advocate that by an amendment the legislation in England has been amended and definition of documents have been amended to include video-cassette, audio-cassette, and CD in the definition of documents whereas no such amendment has been made in Ordinance, 1984. It was contended that since the plaintiffs have failed to produce audio video-cassettes at the first available opportunity by presenting original recorded cassette in court and authenticity of the same arc not beyond shadow of any doubt and further the same has not been recorded by an independent person and were produced by expert witnesses after 22 months of filing of the suit the same cannot be accepted in evidence. It was contended that the plaintiffs did not refer about recording of conversation in the memo of plaint and only mentioned in this regard upon the documents relied. Learned advocate argued that by C.M.A. 1750 of 2005 filed on 15-3-2005 for the first time reference in respect of tape recorded cassettes were made by the plaintiffs after seven months of filing of the suit on 4-4-2005 and copies of audio tapes were filed. The plaintiffs filed affidavit in evidence in September, 2005 i,e, after one year of filing of the suit but did not tender the alleged cassettes along with his affidavit in evidence. An additional affidavit in evidence was filed on 29-10-2005 in which though the plaintiffs mentioned about the tape/audio-recording but did not tender the cassette even at this stage and for the first time the cassettes were produced by the expert witnesses during their evidence in May, 2006 i,e, after 22 months of filing of the suit. Learned advocate in support of his contention that cassette produced after 22 months cannot be accepted in evidence also drawn my attention to Order XIII, rules 1 and 2, C.P.C. And argued that all documentary evidence has to be produced on the first hearing of the suit and since plaintiffs failed to produce the same they cannot be allowed to produce cassette in evidence after 22 months of filing of the suit. In support of his contention learned Advocate relied upon the case of Hakim Ali Bhatti v. Qazi Abdul Hakim and others 1986 CLC 1784, Mst. Mariam Haji and others v. Mst. Yasmin R. Minhas and others PLD 2003 Kar. 148, Smt. Jogindar Kaur v. Surjit Singh 1985 Punjab and Haryana 128(b), Lachmandas v. Deepchand AIR 1974 Rajasthan 79, Sumitra Debi Kaur v. Calcutta Dyeing and Bleaching Works AIR 1976 Cal. 99, Ghulam Fatima v. Settlement Land Commissioner (Land) Lahore and others PLD 1968 SC 147, C.R. Mehta v. State of Maharashtara 1999 PCr.LJ 2863, Abdul Ghani Shaikh and others v. Syed Muhammad Raza and others AIR 1920 Patna 610 and Partab Singh v. State of Punjab, AIR 1963 Punjab 298.
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Mr. Zahid F. Ebrahim, learned Advocate for defendant No,3 in support of his application being C.M.A. No,1360 of 2007 and C.M.A. No,1361 of 2007 relied upon the arguments of M/s. Iqbal Qazi, and Liaquat Merchant, argued that only conversation of defendant No,3 in original has been produced and other conversation produced even through expert witnesses are copies of the original conversation. Miss Sana Minhas, learned counsel for the plaintiff No,2, in reply argued that although defendant had served notice under Order XI, Rule 15, C.P.C. To produce the cassette but plaintiffs have rightly refused to produce the cassette relied upon by them, as cassettes were not mentioned in the memo of plaint and no reference has not been made in respect of the cassette in the plaint and only documents about which reference has been made either in the pleadings or in the affidavit, can be produced for inspection of other parties under Order XI, rule 15, C . P. C . In reply to the objections of learned Advocate for the defendants about delay in production of the cassettes it was contended by the learned counsel for the plaintiffs that there was no delay in producing the cassettes and same were produced at the earliest possible opportunity. Miss Sana Minhas, learned Advocate for the plaintiffs, relied upon Order VII, Rule 14(2) and Order XIII, Rules 1 and 2, C.P.C. And argued that only document on the basis of which suit has been filed are required to be produced in court along with the plaint and the other documents as evidence, in support of the claim have to be mentioned in the list, to be added or annexed with the plaint, as documents relied upon. It was contended by the learned Advocate that the plaintiffs have produced transcript of audio- cassette three months prior to framing of the issues which was the first date of hearing. Audio-cassettes were produced on 15-3- 2005 along with C.M.A. 1750 Of 2005 and on 3-6-2005 it was ordered that the said application will be heard along with the main suit. It was contended that after issues were framed again copies of the transcripts were filed by the plaintiff No,l. In para. 37 of the affidavit in evidence, the plaintiff stated about the conversation recorded and produced the same as Exs.23-A to 23-F and as such there was no delay on the part of the plaintiffs in producing cassettes in question. Learned Advocate in support of her contention relied upon the case of Zafar Iqbal and others v. Bashir Ahmed and another PLD 1990 SC 109, and argued that in Article 164 of Qanun-e-Shahadat Order the Legislature used the word "evidenceand "evidence" as defined in Article 2 includes all types of evidence including documents, CDs etc., by which parties can prove their claim and relied upon the case of Don Basco High School v. The Assistant Director EOBI PLD 1989 SC 128, Mushtaq Ahmed v. The State 1991 SCMR 543, Ziauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra and others AIR 1975 SC 1788, Haji Noor Muhammad and others v. Mst. Shaheed-un-Nisa 1989 MLD 3877 and Saifur Rehman Khan v. Shahbuddin 1995 MLD 1485. Mr. Adnan Chaudhry, learned Advocate for the plaintiff No,1 relied upon the consent order passed on 17-3-2006 and argued that present application is premature and the question whether the cassettes should be accepted in evidence or not ought to have been decided in terms of the consent order at the time of final arguments and relied upon the definition of Article 2(e) of the Qanun-e- Shahadat Order which was added by Electronic Transmission Ordinance LI of 2002 and argued that electronic document includes, record, information, communication and transaction in the 'electronic forum and contended that the cassette, audio-tapes in view of the amendment made in the Qanun-e-Shahadat Order is admissible piece of evidence. Mr Iqbal Qazi and Liaquat Merchant, learned counsel for the defendants, in reply argued that in terms of Order VII, rule 14 read with Order VII, Rule 1, C.P.C. Since plaintiffs have not mentioned in the plaint facts relating to video-cassette, CD, or tape-recording which were admittedly in possession of the plaintiffs at the time of filing of the suit and has not sued on the basis of alleged admission made in the said tape cassette the plaintiffs cannot be permitted to produce the same in support of their claim now. I have taken into consideration the respective arguments advanced by the learned Advocates for the parties, perused the record. Before I proceed to decide the issue in the matter I would like to briefly state the nature of dispute in the matter. The plaintiffs filed suit on 10-9-2004 for declaration, injunction, specific performance and rendition of accounts in respect of the Company (defendant No,2) which was incorporated on 12-10-1972. The plaintiffs claimed one-third shareholding in the defendant No,2 company and New Jubliec Insurance Limited and in this regard family settlement was concluded between the parties. Due to some family disputes amongst the family members, the matter was referred for conciliation under the Ismaili International Conciliation and Arbitration Board and on its failure to amicably resolve the dispute, on 31-5-2002 two arbitrator& were nominated one by Mr.Akbar Ali Hashwani and others by defendant No,1 who entered upon reference on 17-10-1992. On 27-7-2004 family settlement was concluded and the litigation pending before this Court as well as before other forums were to be withdrawn vide decree dated 18-7-2004. It was alleged in para.l5 of the memo. Of plaint that at all times defendants fully acknowledged one-third entitlement of the plaintiffs in the shareholding of the defendant No,2 as heirs of their late father and by virtue of the compromise decree dated 24-12-1978 Mr. Akbar Ali Hashwani was appointed as guardian of the minor's properties and said guardian in all the cases relating to the family agreement, emphatically affirmed that the shares of New Jubilee Insurance Ltd. As well as total shares of defendant No,2 were to be divided into three equal parts. In para.18 of the memo. Of plaint it was alleged that on 3-8-2004 defendant No,3 Executive, Director and Company Secretary of the defendant No,2 held meeting in the office of defendant No,1 and informed the plaintiff No,1 that the dispute between Akbar Ali Hashwani and the defendant No,1 has been settled out of court and the latter also wants to settle the claim of the heirs of late Hassanali Hashwani (plaintiff) in respect of their share in defendant No,2 company. Defendant No,3 further stated that he has been instructed by the defendant No,1 to offer to the plaintiffs a total of 766,666 shares out of total 60,00,000 shares of defendant No,1 which come to 12.78% of the total holding at a break-up value of Rs,209 per share. In para.19 meeting of defendant No,3 on 14, 19 and 21 August, 2004 have been mentioned in which he informed the plaintiffs that defendant No,1 wanted resignation of plaintiffs Nos.1 and 2 from the Board of defendant No,2 which plaintiffs refused to accept. On 3- 6-2004 by consent of the parties Mr. Justice (R.) Salem Akhtar was appointed as Commissioner to record evidence of the parties. By this order I would like to decide the only question, whether at this point of time plaintiffs should or should not be allowed to play video recordings/tape-recordings/audio compact discs or refer to the transcripts during cross-examination of defendant No, 1. The defendants questioned that plaintiffs cannot play recorded cassettes on the ground (1) that the plaintiffs has not filed recorded cassettes along with the memo. Of plaint, (2) that the cassettes are not admissible piece of evidence, (3) there is no undue exclamation in respect of delay in the proceeding cassettes (4) original cassettes have not been produced and secondary evidence is not admissible. The learned Advocates for the defendants objected the production of cassettes in question of evidence.
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First question which requires to be decided in about effect if not producing the cassettes along with the plaint. Order VII, Rule 1, C.P.C. Provides that the plaint should contain apart from the name of the Court, name, description of the plaintiffs, name and description of the defendant, then facts constituting the cause of action, facts showing that the Court has jurisdiction and relief claimed by the plaintiffs. Order VI, Rule 2, C.P.C. Required that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. On reading Order VII, Rule 1 read with Order VII, Rule 14 and Order VI, rule 2, C.P.C. It appears that plaintiffs while giving description of the parties also has to state concise material facts on which party pleading relies upon the purpose for his claim or defence which he wants the other parties to know what they are required to meet but not the evidence by which they are to prove. The plaintiffs claim, in the suit, is based upon family settlement between the parties and shareholding of defendant No,2 Company and the recorded cassettes are not the basis of the claim in the matter but can be a piece of evidence in support of the plaintiffs claim in the matter and the plaintiffs are not required in terms of Order VI, Rule 2, C.P.C. Read with Order VII, Rule 1, C.P.C. To disclose or produce the same along with the plaint. As regards Order VII, Rule 14, C.P.C. The plaintiffs are required to produce only those documents upon which plaintiffs sue against the defendant and the other documents in support of claim and are not the basis of the cause need not to be produced along with the plaint but the plaintiffs if want to rely upon any such documents, evidence, whether in his possession or not has to disclose the same as documents relied upon in a list to be annexed with the plaint. As regards the question that the defendant has failed to produce the cassettes within a reasonable period of time it appears that the plaintiffs did not file tape/audio recorded cassettes, CD and transcript along with other documents filed with the plaint but made reference to the same as documents relied upon. It appears that in their application being C.M.A. No,1750/2005 filed on 15th March, 2005 plaintiffs produced copies of the tapes/audios CD along with their statement on 4th April, 2005 and same were produced by the expert witnesses in May, 2006 i,e, after 22 months of institution of the suit. As I have held hereinabove that the claim of the plaintiffs is not based upon audio/video tapes but they want to rely upon the same as a piece of evidence in support of their claim. On 3-6-2005 issues were framed by the Court and parties were directed to file documents within a week in support of their respective claims and much before the passing of the order directing the parties to file documents in support of their respective claims. Plaintiffs have not only produced transcript of the audio-tapes in question but also produced the same in Court. The plaintiffs filed an application under section 151, C.P.C. (C.M.A. No,1750 of 2005) seeking permission to bring on record audio/video cassettes and it was ordered to be fixed along with the main case after recording of the evidence. It is not disputed by the defendants that the entire transcript of the audio recording were brought on record by the plaintiffs within a reasonable period of time and further cassettes and CD tapes were produced along with application under Order XIII, Rule 2, C.P.C. The party who failed to produce documents on the first date of hearing or if within the time granted by the Court then unless good cause has been shown for non-production of the documents on the first date of hearing such documents cannot be allowed to be produced by the party, who failed to produce the same on the first date of hearing. Nonetheless in the matter the plaintiffs relied upon cassettes in question and specifically mentioned the same in the memo of plaint as required under Order VII, Rule 14(2), C.P.C. And further produced the same before the expiry of time for production of documents fixed by the Court. For the foregoing reasons, there was no delay in production of the documents by the plaintiffs. In the case of Messrs Kamaran Industries v. The Collector of Customs (Exports) PLD 1996 Kar. 68, it was held that first hearing means at the time of framing of issues. The plaintiffs filed transcript of CD recorded cassettes with. His Rejoinder to C.M.A. 6259 of 2004 in March,…
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