In a significant ruling handed down on February 17, 2025, the High Court of Sindh at Karachi dismissed an application by ICI Pakistan Limited (now Lucky Core Industries Ltd.) to introduce secondary evidence in a 2015 lawsuit seeking to recover over Rs. 26.5 million from Al Abid Silk Mills Limited. The court’s decision hinged on the finding that the alleged loss of original documents, crucial to ICI Pakistan’s claim, stemmed from its own “default or neglect” rather than unforeseen circumstances.
Justice Sana Akram Minhas, overseeing Suit No. 2442 of 2015, rejected the application (CMA No. 17637/2018) which sought to admit photocopies of “Purchase Orders” (Annex P-5) and “Dispatch Advice” (Annex P-13) as secondary evidence. The plaintiff, ICI Pakistan, contended that these original documents were “lost/misplaced” during a large-scale, trans-provincial acquisition by Lucky Cement Limited in 2012-2013.
However, the court found several inconsistencies and a lack of diligence on the part of the plaintiff. A key point of contention was the timing of the claim regarding the lost documents. The alleged loss occurred years before the suit was filed in December 2015, yet there was no mention of it in the initial plaint or in the affidavits of two subsequent witnesses until November-December 2018, when an Evidence Commissioner refused to exhibit the photocopies. The court characterized this belated disclosure as a “mere afterthought”.
Furthermore, the court highlighted a direct contradiction in the plaintiff’s arguments. While the application claimed the originals were lost in 2012-2013, it also stated that photocopies were made from the originals when they were still in the plaintiff’s possession. This implied the originals were available when the suit was filed in 2015, directly contradicting the assertion of an earlier loss.
Justice Minhas underscored the principle that secondary evidence is permissible only when the original document is lost or destroyed due to reasons “not arising from his own default or neglect”. The court noted that the loss occurring during an internal corporate acquisition process suggested a “lack of due diligence in safeguarding critical documents”. The plaintiff, as a corporate entity, bore the responsibility to preserve its records.
The court found the plaintiff’s explanation for the loss to be vague and lacking in detail, with no evidence of efforts to locate the documents or internal correspondence regarding their misplacement. This, the court concluded, reflected a “casual and indifferent manner in pleading the loss”.
Ultimately, the court determined that ICI Pakistan had failed to establish that the loss of the original documents was beyond its control. Allowing secondary evidence under such circumstances, the court stated, would “undermine the principle that parties must exercise proper care in preserving documentary evidence”.
No costs were imposed in the dismissal of the application.
